Duchachek Notes

YARDSTICK ONE: EXCLUSIVE CONTROL OVER FOREIGN RELATIONS

Has the Central Authority exclusive control over diplomacy and defence as befits a nation-
state in its relations with other nation-states?
a federal union’s main purpose is to present itself on the international scene as possessing the
power and the will to speak on behalf of its component units with one single legitimate voice;
however, this purpose is in contradistinction to an alliance or a league of states. Unless the
component units agree to this basic point, there is little likelihood that an alliance can
transform itself into a federal nation;
Indian Constitution in its seventh schedule includes entries related to diplomacy and defence,
war and peace, treatise, the United Nations, pilgrimages outside India, piracies and crimes
committed on the high seas or in the air and offences against international law in the Union
list, which gives power to the federal government.

1. Defence of India and every part thereof including preparation for defence and all such
acts as may be conductive in times of war to its prosecution and after its termination
to effective demobilization.[xxiii]
2. Naval, military and air forces; any other armed forces of the Union.[xxiv]
3. Naval, military and air force works.[xxv]
4. Foreign affairs, all matters which bring the Union into relation with any foreign
country.[xxvi]
5. Diplomatic, consular and trade representation.[xxvii]
6. Participation in international conferences, associations and other bodies and
implementing of decisions made thereat.[xxviii]
7. Entering into treaties and agreements with foreign countries and implementing of
treaties, agreements and conventions with foreign countries.[xxix]
8. War and Peace.[xxx]

Article 53(2) vests the President with the Supreme Command of the Defence Forces of the
Union.[xxxii] Article 352, 353 and 355 also speak about the Union’s power during the times
of national emergency. Article 51 which speaks about the promotion of international peace
and security is also provided under the Directive Principle of State Policy.[xxxiii] The
existence of these powers under the Indian Constitution is more elaborate than in the
American Constitution. Thus the Indian Constitution answers the first of the ten yardsticks of
federalism more positively than the American Constitution.
YARDSTICK TWO: IMMUNITY AGAINST SECESSION

(Is the federal union constitutionally immune against dissolution by secession?

India, that is Bharat, shall be a Union of States.[xxxvii] It empowers Parliament to admit into
the Union, or establish, new States on such terms and conditions as it thinks fit.[xxxviii]
Further Parliament can by law form a new State by separation of territory from any State or
by uniting two or more States or parts of States or by uniting any territory to a part of any
State; increasing the area of any State; diminishing the area of any State; altering the
boundaries of any State; or altering the name of any State.[xxxix] The proviso to that Article
requires that the Bill for the purpose shall not be introduced in either House of Parliament
except on the recommendation of the President and unless, where the proposal contained in
the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by
the President to the Legislature of that State for expressing its views thereon. On a conjoint
reading of these Articles, it becomes clear that Parliament has the right to form new States,
alter the areas of existing States, or the name of any existing State. Thus the Constitution
permits changes in the territorial limits of the States and does not guarantee their territorial
integrity. Even names can be changed. Under Article 2 it is left to the Parliament to determine
the terms and conditions on which it may admit any area into the Union or establish new
States. In doing so, it has not to seek the concurrence of the State whose area, boundary or
name is likely to be affected by the proposal. All that the proviso to Article 3 requires is that
in such cases the President shall refer the Bill to the legislatures of the concerned States likely
to be affected ‘to express their views’. Once the views of the States are known, it is left to
Parliament to decide ‘on the proposed changes. The Parliament can, therefore, without the
concurrence of the concerned State or States change the boundaries of the State or increase or
diminish its area or change its name. These provisions show that in the matter of Constitution
of States, Parliament is paramount.
YARDSTICK THREE: INDEPENDENT SPHERE OF CENTRAL AUTHORITY

(Is the exercise of the Central Authority, as it reaches all citizens, directly independent of the
individual approval and resources of the component units?

McCulloch v. Maryland in 1819, when a bank (a quasi- governmental institution incorporated

by the United States and established in Baltimore) issued notes in violation of a Maryland
law that required all banks to pay an annual tax of 15,000 dollars or to pay a stamp tax on
each bank not issued. The controversy was decided by the Supreme Court in favour of the
federal government. In Chief Justice John Marshall’s words:

A government intrusted with such ample powers [to lay and collect taxes, regulate
commerce, conduct war, etc.], on the due execution of which the happiness and prosperity of
the nation so vitally depends, must also be intrusted with ample means for their execution. It
can never be their interest, and cannot be presumed to have been their intention, to clog and
embarrass its execution, by withholding the most appropriate means.

Federal constitutions make the federal government independent of the constituent units by
granting it the right to levy direct taxes and enforce the federal laws. This also implies that
the rightful inhabitants of the federal state are federal citizens in addition to[xlii] or instead
of[xliii] their local citizenship. India, the Union Government is independent of the
constituent units and can levy direct taxes and enforce federal laws. The Union finances
national programmes to be implemented by the States. The tax heads or bases have been
specifically mentioned in the Constitution itself, and divided between the Union and the
States. The entire gamut of financial relations has been provided for under the constitution
itself. Along with the tax bases mentioned in Schedule VII, Article 268 to 281 also speak
about the tax sharing between them. Further, the Union property is exempted from the state
taxes[xlvi] and vice versa.[xlvii] The lessons the Americans have learnt through McCulloch
v. Maryland, have been thus taken into consideration by the makers of the Indian
Constitution. Further the Union Government can make grant-in-aid to the States every year.
[xlviii] Thus, the Central authority is very much independent of the individual approval and
resources of the component units with regard to the financial as well as other resources.
YARDSTICK FOUR: AMENDING THE FEDERAL CONSTITUTION
Who has the ultimate control over amendments to the federal Constitution?
If the American model of federalism were viewed as the only pure one, the fourth yardstick
may be expressed as retention of veto over constitutional changes by a majority of, but not
all, component units. According to many experts this is by far the most reliable yardstick of
federalism when the text of constitutions is analyzed. If the ultimate control over
constitutional changes is in the hands of all the component units, such a system, based on
unanimity, seems not to have moved from an association of states to a new federal nation. A
new supraterritorial identity, institutions, and power have not really been created if for any
amendment the consent of every single component unit is required. If on the other hand, only
a vote of the central parliament is required (with or without a subsequent plebiscite). Such a
system, based on a national majoritarian principle, makes the amendatory process
indistinguishable form that in a unitary system.
Under the Indian Constitution the power and procedure for Amendments have been provided
under Article 4,[l] Schedule VI and principally under Article 368 of the Constitution. The
power to initiate the amendments is vested with the union in all the cases. There is no need
for the ratification by the states for all amendments. However, Article 368(2) indentifies
certain types of Amendments which essentially need the ratification by at least half of the
states. The Amendments which need such ratification by at least half of the states are
provided under Article 368 (2) (a) to (e).[li] Thus, it is clear that when Amendments are
likely to be affecting the federal structure to some extent, ratification by not less than half of
the States is necessary.

The four yardsticks discussed so for were intended to distinguish so for were intended to
distinguish a federal nation-state from an association or confederation of sovereign
states .Although these are helpful in discovering national variations of constitutional
approaches to discovering national Variations of constitutional approaches to unity in
diversity, they failed to provide us with a fully reliable criterion. In the following chapter we
shall examine some other yardstick of federalism, the purpose of which is to draw a line
between a federal and a unitary constitutional system.

YARDSTICK FIVE: INDESTRUCTIBLE IDENTITY AND AUTONOMY

(Are the component units immune to elimination of their identity [antedating or the very term
indestructible is too absolute for the world of politics, where nothing can be deemed immune
to change. Like men, political institutions are born; then they mature, prosper, live, become
sick, and die a natural or a violent death. Indestructibility at best should be understood as
a “relative eternity” or perhaps simply longevity.

Second, a unitary system in theory can, but in practice rarely does, eliminate units of local
self-rule. The reason for the restraint is not a constitutional prohibition but politically wise
respect for territorial pluralism or simply concern for greater administrative efficiency that
overburdening of the national centre would jeopardize. In a unitary system, Paris has no more
intention to take over the administration of Marseille than Sacramento plans to capture the
administration of Los Angeles. “Self-Government at the King’s Command” may sometimes
be not less but more significant than under a federal constitution.

Third, there are numerous unitary systems that promise local autonomy, leaving its scope and
mechanism to future laws; many unitary constitutions not only guarantee the principle of
local autonomy but describe its scope at some length and add specific provisions for
autonomous legislative and executive organs, endowed with local taxing powers. These
constitutions not only do not claim to be federal but stress their unitary character. In another
context we have already mentioned some of such cases: the People’s Republic of China,
whose Constitution stresses its unitary nature but guarantees different levels of broad
regional-ethnic autonomy; Italy’s Constitution promises the establishment of regions,
endowed with official autonomous organs (regional council, executive giunta, and its
president), financial autonomy, taxing powers, and a share in national taxes. The unitary
features,[liii] on the other hand, are manifest in the provision that the central authority is to be
represented in each region by a commissario with a veto power over local administration and
with primary responsibility to the national capital. The regions are represented by senators on
a proportional basis (one senator for every 200,000 inhabitants). We have also previously
mentioned Czechoslovakia, which before 1968 asserted its unitary character but emphasized
the equality and indestructibility of its two component peoples: “The Czechoslovak Socialist
Republic is a unitary state of two fraternal nations, possessing equal rights, the Czechs and
the Slovaks.”postdating the Union] and authority?

When India emerged as an independent State, it had nine fully autonomous states, eight less
autonomous states, ten minor states, called Part A, B and C States respectively and federally
administered territories called Union territories. This has been made possible by the
Reorganisation of States in 1965 mainly on linguistic considerations. Thus the power to alter
the boundaries of the States or change the name of the existing ones is given to the Union
Parliament.[lvi] Although the power for the total elimination of a State’s identity is available
with Parliament under Article 3(a) of the Constitution of India, it has not taken place so far.

YARDSTICK SIX: RESIDUAL AND SIGNIFICANT POWERS

Have the component units retained all the powers that the constitution has not given to the
central authority? And are these retained powers significant or marginal?
in the majority of federal systems today we find different constitutional provisions: powers
given to the provinces are enumerated, the rest of the power being reserved by the central
authority. This is so, for instance, in Canada, whose basic federal law was prepared in the
period following the American Civil War. It was then generally believed that the residual
powers of the American states were one of the main reasons for political confusion and civil
war. Modern federal constitutions, like those of India, Pakistan[lx] and Burma contain long
and detailed lists of powers reserved for the central authority (Union List), powers reserved
for the component units (State List), and powers exercised by both elements (Concurrent
List), with usually the provision that if the central authority chooses to exercise some of the
concurrent powers it thus pre-empts the state powers.

More important than the location of residual powers in one or the other level of government
is the requirement that in a true federation.

“there must be some matter, if only one matter, which comes under the exclusive control,
actual or potential, of the general government and something likewise under the regional
government. If there were not, that would be the end of federalism.[lxi]

Here one question must be posed: Does it matter or not what kind of power is left to the
exclusive domain of one or the other level of government? Territorial distribution of authority
in a federal system has never been intended to be on a fifty-fifty basis; a federal system by
definition favours the national power by placing in its hands defence, war, and taxing powers.
But if through a constitutional division of power, the federal centre were to retain 99 percent
of the power, leaving the territorial components with 1 percent, would it still be correct to
speak of a federal system? If, on the other hand, the central authority were left with only
some symbolic or ceremonial powers, it would not be a nation-state at all, only an alliance or
a loose league. Evidently, here the old problem of quantitative measurement of political
powers appears again. Is it indeed possible to quantify power so as to speak in terms of 99
percent to 1 percent? Furthermore, because power is only a means to an end, there arises the
problem of also measuring the value of various ends that one or the other level of government
may desire to attain. What seems provincially or locally vital may be viewed nationally as
marginal and vice versa.

This type of arrangement in the division of powers is not followed by all federal states. In
some of them residuary powers are left with the federal Government and in some specific
distribution is mad e along with certain concurrent powers. In India, apart from making three
lists in Schedule VII (Union, State and Concurrent powers), the residuary powers are vested
in the Union and not to the states.[lxii] However, the States under Indian Constitution do
enjoy some “real powers” in all matters listed in List II as well as some in List III of the same
Schedule. Thus, to a large extent the Indian Constitution can be said to be satisfying this
yardstick too, irrespective of the fact that the residuary powers are with the Union
Government.
YARDSTICK SEVEN: BICAMERALISM AND EQUAL REPRESENTATION OF
UNEQUAL STATES

Is the collective sharing in federal rule making adequately secured by equal representation
of unequal units in a bicameral system? What are the constitutional provisions for collective
sharing in the executive and judiciary rule implementation?

the American founders agreed on a proportional representation of unequal states in the lower
house and an equal representation of unequal states (two senators per state) in the upper
house (the Senate, a federal chamber to replace the British concept of a hereditary,
aristocratic one).[lxiv] The United States bicameralism is a true and full one because both
houses are equal in matters of legislation: no law can be enacted unless both houses agree on
the same text. This is in contrast with many other bicameral systems in which the upper
house often enjoys only a limited or suspensive veto over legislation. Furthermore, unlike the
parliamentary system, the American lower house does not create the national executive
branch (the cabinet). And the executive branch is not directly responsible to the lower house.
The Senate’s advice and consent to executive appointments and treaty making make the
Senate, with its one hundred senators, actually a powerful body and a partner of the national
executive; this is in contrast with parliamentary systems, where this role is exercised by the
lower house.

In India, collective sharing in federal rule making is secured by unequal representation of

unequal units in the bicameral system. The allocation of seats to the States in the Council of
States in the Parliament is provided under Schedule IV of the constitution. Apart from this,
twelve members are nominated by the President to the Council of States taking the total
strength of Rajya Sabha to 250.[lxvi] No constitutional provision enquirers that judges to the
Supreme Court or various high courts should be from one State or the other. ON the other
hand, by way of convention, judges are appointed to both the courts which interpret the law
and the constitution to prevent an opinion that judgeships of the Supreme Court are
monopolised by a few states. The judges can be moved from one high court to another, thus
making the federal work in its policy control apparatus territorially neutral.

YARDSTICK EIGHT: TWO SETS OF COURTS

(Are there two independent set of courts, one interpreting and adjudicating the federal laws
and the other the state laws?

only a few federations – the United States and, with modifications, Mexico and Brazil – have
developed two parallel networks of courts: federal courts to adjudicate national laws and
provincial courts to adjudicate local laws. The United States, for instance, has established a
complete judicial hierarchy on both the federal and the state levels. In the federal-court
structure there are, in ascending order, district courts, circuit courts of appeal, and at the top
of the federal judicial pyramid the Supreme Court. In each state another judicial pyramid of
state courts culminates with the state Supreme Court. The two systems, however, are not
“federally fully separate”, not only is the federal Supreme court the highest court of appeal
from both networks but the two systems actually interlock by a degree of concurrent
jurisdiction, shared by both the federal and the state courts. Only some matters are reserved
for the exclusive jurisdiction of the state courts. Some other matters are under the exclusive
jurisdiction of the federal courts, such as crimes and offences against the United States; prize,
patent, copyright, and some bankruptcy cases; civil cases of admiralty and maritime
jurisdiction; cases to which a state is a party; and cases involving foreign ambassadors.

In India, there is a unified judicial system with the Supreme Court as the apex body followed
by the twenty one other high court. The Supreme Court as well as the high courts can
interpret the Constitution, and the Union as well as the State laws. The judges for all these
courts are appointed by the Union in consultation with the State authorities for appointments
to the High Courts.[lxxii] The Indian Constitution authorizes Parliament to establish “any
additional courts for the better administration of federal laws.”[lxxiii] But it has chosen not to
do so. There are only state courts supervised by India’s federal Supreme Court.

If a fully developed parallel federal and state court systems were a decisive yardstick of
federalism, only the United States (and, with some qualifications, Mexico and Brazil) could
pass the test.

YARDSTICK NINE: THE SUPREME COURT

(Is there a judicial authority in the central authority but standing above the central authority
and the components units to determine their respective rights?

In all systems, federal as well as unitary, there is a need for an impartial agency that can
ascertain the meaning of the nation’s supreme law, the constitution, and that, in light of its
findings, can determine the compatibility of any given law or official act , national or local,
with the constitution. This may lead and has led to a broad concept of the judicial review, the
right of the courts to annual or confirm the validity of laws passed by national or states as
exercised by the Supreme Court, has been in
modern times characterized by the Court’s
support of civil rights and liberties, many unitary and federal constitutions, in one form or
another, have now imitated the American theory and practice to some extent. Constitutional
courts in unitary France, Federal Germany, Communist Yugoslavia, and Moslem Pakistan
represent brave attempts to transplant the American institution of judicial review from its
native American soil to areas somewhat less hospitable to the power of the judges to decide
issues that often are political and social in nature, although presented in legalistic garb. As
yet, in no country is there a real counterpart to the awesome power of the United States
Supreme Court. Especially in Europe, there is some doubt concerning the wisdom of placing
a few judges above the people and its elected representatives when it comes to the
interpretation of the nation’s fundamental law that expresses political and social theory of the
founders. In a federal system there seems to be an even more acute need for an impartial
agency, because the interpretation of the meaning of the constitution includes also the
delicate original political agreement between territorial communities from which the whole
federal system had issued. In its role of protector and interpreter of the federal compact and
arbitrator of possible disputes about the division of power between two jurisdictional spheres,
such an agency should be, ideally, independent of both the federal and the provincial
governments and should stand sublimely above both.

In India also a similar situation exists. But unlike the American Constitution, judicial review
is explicitly provided under article 13(2) of the Constitution[lxxviii] read with Article 14, 32
thereof. Article 131 also speaks about the original jurisdiction of the Supreme Court in any
intra-federal disputes between the Government of India and one or more States, or between
two or more states. Thus there is a judicial authority in India, standing above the Central
authority as well as the components units that can determine their respective rights.

Yardstick Ten: Clear Division of Powers

Is the territorial division of authority clear and unambiguous?

Five principal over laps that blur the critical line between central and provincial powers may
be noted.

1. The federal monopoly in the field of foreign policy and defence and its implications
2. The emergency provisions (related to 1)
3. The concurrent power
4. The elastic or coefficient clauses (related to 3)
5. The lack of verbal precision, partly deliberate and partly unwitting, which may be
found in all federal constitutions
6. The federal monopoly in foreign policy and defence spills over easily into the
seemingly exclusive domain of provincial powers. This is actually a genetic feature of
all federations because the fundamental reason for most federations is to create a
nation vis-à-vis other nations, which means a nation with a unified foreign policy and
a unified concept of collective defence, based on a unified defence establishment.

7. Under the Constitution of India also there is federal monopoly in the fields of foreign
policy and defence with all its implications. The emergency powers are again with the
Central government.[lxxx] Unlike the American Constitution, the Indian Constitution
very clearly distributes the powers between the Union and States. Schedule VII to the
Constitution contains three different lists: List I called the Union List has 97 Entries,
List II called State List has 66 Entries and List III called Concurrent List has 47
Entries. With regard to List I, the Union alone has absolute power and the states
cannot interfere in it. List II is with the States, Union getting the power overlap to
legislate on them.[lxxxi] List III is common to both the Union and the States.
However, in the event of a conflict between the Union and the State law on any of the
entries in List III, it shall always be in favour of the Union, subject to the exception
given in Article 254(2).[lxxxii] The Union also has the power of administrative
supervision over states.[lxxxiii] Thus, the territorial division of authority under the
Indian Constitution is very elaborate, clear and unambiguous. In the event of any
ambiguity being felt the superior courts have the power to interpret the provisions of
the Constitution to remove any doubt with regard to the sharing of powers by an
exercise of review in terms of the provisions in the Chapter I of the Part XI of the
constitution.

The future of India and her Constitution will depend on how the nation evolves the
principles and practice of federalism suited to India whose indispensible requisite has
to be unity in diversity, integrity with variety, marked by the wisdom and experience
of creating a harmony between the centrifugal and centripetal forces within this sub-
continent.