The difference between the US and Indian federalism

This article is written by Jaya Vats from Vivekananda Institute of Professional Studies, Delhi. In this article, the author discusses the meaning of federalism and draws a comparison between USA federalism and Indian federalism.

Introduction

The United States and India are the world’s largest democratic countries and are focused on their constitutional system of federalism. The US became a federal republic State by upholding its Constitution in the year 1789; while India became a secular, socialist, sovereign, the democratic republic by formally launching its Constitution only in the year 1950. Hence, both countries had acquired the status of dominion in which many smaller states had become aligned to form a union with a strong Central Government that had come to be called. Both States were then federal republics. 

During its drafting committee chaired by Dr. Ambedkar, the Indian Constitution was conceived with many outstanding features in the world like America but was adopted in the Indian sense. The Indian Constitution was established. There are also many similarities and distinctions between both the United States and India, although they are federal.

The term “Federalism”

In a nation, federalism 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. The federal values are embedded in and defined by a mixture of autonomy and popular law. In the broadest sense, federalism means connecting people, organizations, and politics to a permanent yet restricted union in such a way as to ensure the vigorous pursuit of common ends while preserving the respective independence of both parties. Federalism as a political concept deals with the constitutional allocation of power in such a way that the constituent units of a federal system are part of the collective policy-making and administration process by default, whereas the functions of the general government are carried out in such a way as to preserve their respective independence. 

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.

A resident of a federal country is subject to the decrees of two governments. The majority of the powers and duties of the government are split between the Center and the states. Thus, each level of government functions within its assigned sector. However, most governments do 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.

Federalism in the US

The USA is a federal government. Article I lists the competences of the national government and has been called ‘few and established’ by James Madison. Few, maybe: Section 8 of Article I has 18 clauses, although some are subdivided. And, to some degree, defined: the provision that gives Congress authority to “create posts and postal roads” is not well understood. Other laws were not so well known as obviously; since 1789 it has been contested almost continuously for the importance of the clause granting the Congress power “to control trade between the various States.”  The powers that the Constitution does not delegate to the United States are reserved for the States or the people. Upholding the federal minimum wage law, Justice Harlan Fiske Stone noted that, literally, this provision ‘states but a truism that all is constrained and surrendered.’ Madison makes a useful statement: ‘Powers reserved for the various States shall cover all the objects which, in the course of the ordinary business, concern people’s lives, freedoms and property, and internal peace, improvements, and prosperity.

The Constitution of the United States says nothing about the governments of the states that have control. State governments reflect the composition of the national government: an elected chief executive, two legislative houses, and the court. In addition to the basic proposal that state governments have plenary power — that is, may make legislation on any subject — while national governments only have specified powers, state governments structurally vary from domestic governments in several respects. Each state has a budget of its own. According to the US constitution, the National Government does not need to be fiscal in check and has seldom done so in recent years. 

In some decisions of the Supreme Court in the 1990s, observers proclaimed the beginning of the federalist movement. The Court found certain statutes unconstitutional, as they had for the first time since 1936 violated federal values. And at this point, the revolt looks more like a group of pitchforks than a serious attempt to overthrow an enlargement of the national power since the new deal. The key avenues of the national government power centralization have been defined through the use of legislative authority in intergovernmental trade regulations. Congress, inevitably, has other forces and one, in particular, becomes more essential as the 20th century continues. Congress has the authority to enact and levy taxes to maintain America’s popular security to welfare.

The growth of the national government and in particular the implementation of the sixteenth amendment, in which Congress approved the collection of income taxes (1913), gave the tax authorities a stronger use. The key consequences for the separation between States and the national government of successful governance were conditional expenditure programs. Given domestic fiscal capital, dependent spending power has almost become as essential as the trade clause as a mechanism for centralizing governing authority. The Court has shown little interest in significant limits on dependent spending power. In the case of Texas V. White, Chief Justice Salmon held that the United States is a Federation of indestructible States. The union of states has never been a strictly artificial and arbitrary arrangement. It started among the colonies and grew up with shared roots, mutual understanding, common interests, and geographical relationships. In the case of Chisholm vs. Georgia, the first major constitutional ruling of the U.S. Supreme Court was made in 1793. It’s about state sovereignty. Sovereign immunity has been a central feature of sovereignty in the Anglo-American tradition. As already stated in Article III of the Constitution, federal courts have authority over disputes between a State and citizens of another State. 

Federalism in India

Origin of the idea of federalism in India was first traced in the Commission Simon, appointed “Indian Statutory Commission” in 1927. The Commission was intended to revise the Indian Constitution. In its 1930 report, the Commission recommended the development of India into a ‘federation of self-government units.’ India emerged as a federation that had been relieved of British Raj’s clutches. Several princely states, divided and governed, came together to form the Indian Union. The pre-independence Center and Provinces became a Union of countries with clear powers divided up into three lists-Union, States, and concurrent lists. The former princely states were replaced by the Indian Union, which later became the federal units. Several such states have joined India and have become full members of the Indian Union. When the Constitution of India entered into force, the component units were grouped into four categories of States. A gradual process was followed by the reorganization of the States, which continued until the end of 1969. Ambedkar said that because the Indian Federation was indissoluble it was a “Union” and no government was allowed to separate from it. The federation is a union because it is an indestructible strong center to secure the nation. In general terms, the ‘Confederation’ is the structure in which the Units dominate the Union; in the Unitary State, the Union dominates the Units. An alliance will be formed among independent states in a Confederation where units can divide. Power is derived from the Central Legislative Assembly in the United State.

The union is effectively dividing legislative authority, with each unit in its position being sovereign. Dr. B.R. Ambedkar used the word Union to make clear that States do not have the right to distinguish themselves from the Union. He said that the Union was a federation and called it a versatile federation to say that it was not as static as the American constitution was. The founding fathers of the Constitution felt a need for a strong core due to the existing social, economic, and political circumstances. At the Constituent Assembly, Ambedkar stated: “The Constitution for India is a federal Constitution insofar as it defines what may be referred to as a dual policy, consisting of a Union at the Core and States at the periphery each with the sovereign powers to be exercised in their respective areas of competence under the Constitution.” There are five essentials necessary to be called as federal and these are:

1. The Constitution has to be written.
2. It has to be rigid.
3. It must be the supreme rule of the land;
4. The separation or transfer of powers between the Union or the federal government and the different States or provinces may take place.
5. An autonomous and impartial judiciary must be formed to interpret the Constitution and the Rules.

However, the term ‘federation’ has not been used consciously. In the case of Kesavananda Bharati vs. State of Kerala, the Supreme Court held that its basic feature was the federal character of the Constitution. In the case of the State of Rajasthan vs. Union of India, the Supreme Court held that the Constitution was an amphibian in the sense that it could travel either on a federal or a unitary plane. Where the action is taken under Article 356, the movement shall be on a unitary plane. Article 249 is a well-designed provision intended to ensure greater consistency in the operation of the union. States have the exclusive right to legislate on matters specified in the State List. Article 249 allows for a situation in which the national interest requires Parliament to be able to legislate on a matter in the State List only if the Council of States agrees, by a two-thirds majority, that it is appropriate in the national interest. In the case of State of Karnataka v. Union of India & Anr, Justice Untwalia said that the Indian constitution is strictly speaking not in a federal sense because it is possible to suggest that a separate, autonomous, sovereign state has joined to form a country such as in the United States of America or the role it has in some other countries of the world. It is for this reason that it was often defined as quasi-federal.

A comparative analysis

The US and India are two of the world’s most influential nations, the former being the oldest democracy in the world, and the latter being the largest world democracy, both the United States and India have democratic federalism. By promulgating its constitution in 1789 the US became a Federal Republic State, while India was only formally founded as a Socialist, Sovereign, Secular Democrat Republic in the 1950s. This led to a dominion status for both countries where many smaller countries had joined to form a union with a central government called the Federal Government in the United States and the Central Government in India. The following is a comparative study of the workings of federalism in both nations and to clarify this, we can draw a comparison with our constitution by contrasting it with Ivo D. Duchace’s principles of federalism. 

                  

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 defense and diplomacy is enforced by the central government under Article 1, Section 10 Clause 3 of the US Constitution. While 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 VII confers powers on the Union Government which are unique to the Union and the States can not interfere with the exercise of those powers. Besides, Article 53(2) 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.

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 5 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 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.

Centre and state working

Article 1 Section 8 of 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 Center and the states. No question of residual power ever arose. But then, if there is no entry in any of the three lists, the Center shall have the authority to do so. Thus, the residual power is with the Center.

Union and secession

As per Article 4 of Section 3 of the U.S Constitution, 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. 

Article 1 of The Constitution of India states that India is a Union of States. Article 2 empowers Parliament to admit or form new States within the Union on such terms and conditions as it considers necessary. Further under Article 3, the Parliament may, by statute, create a new State by separating the territory from any State or by uniting two or more States or parts of States or by uniting any territory to any part of any State; by raising the area of any State; by reducing the area of any State; by altering the borders of any State; or by changing the name of any State.

The Parliament is therefore entitled to create new states, to modify current Member States’ regions, and to change the names of every current State. Therefore the Constitution provides for modifications to the geographical limits and does not protect the territorial integrity of the States. It is also possible to change names. According to Article 2, the terms and conditions for the admission of any region into the Union or for the creation of a new state must be defined by the Parliament. In so doing, it is not to seek rivalry between the State of which the proposal is likely to affect its territory, boundary, or name. All that Article 3 requires is for the President to send the Bill “to express his opinions” in such cases to the legislatures of the concerned States. If the opinions of the Member States are known, it is left to Parliament to vote on the proposed amendments.’ The Parliament can, therefore, without the competition of the State or States concerned, alter the boundaries of the State or increase or decrease its area or change its name. These clauses indicate that Parliament is of utmost importance in the matter of the Constitution of States.

Rulemaking

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.

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 and the High courts of the different states at the lower level. Both have the right to adjudicate federal as well as state legislation.

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. Maryland 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, 226.

The key difference between the US and Indian federalism

Some gaps exist between US and Indian federalism. These differences were created by the creators of the Indian Constitution. The US federalism, as envisaged by its representatives in its Constitution, is very powerful and more rigid. It has a regional character rather than a unitary one. Though India is unitary rather than federal, it is a quasi-federal state.

Rigidity

The Constitution of the United States is very concise and compact, with just a few pages, while the Constitution of India is very dense, comprising as many as XXII sections, 395 articles, and 10 schedules. Since the US constitution is very strict, the laws intended to amend the constitution are also very rigid and more formal. The US Constitution has only been changed 27 times. Whereas the Constitution of India, which entered into force in 1950, has so far been amended 94 times. While a federal Constitution exists in the US, all federal government states have their Constitutions to rule themselves by their loyalty to the federal Constitution. In India, all States that are aligned with the Indian Union have a commitment to the Indian Constitution and no constitution of their own, but each state has the right to pass the laws of its own that are included in both the state and the concurrent lists.

Legislature working

The lower house or Lok Sabha in India is stronger and its representatives are elected directly and indirectly every two years by the people and representatives of the upper house or Rajya Sabha. The members of Lok Sabha serve their electorate on a population basis. The House of Representatives is elected in the US-based on the population of a state but each state in the USA has only two senate members, totalling a hundred members in the United States, irrespective of the size of the state or population. Whereas the Lok Sabha and lower house in India are stronger, the Senate House or the upper house is stronger in the United States. A Rajya Sabha member in India is indirectly elected by a system of proportional and transferable voting, while in the USA a Senate member is elected directly.

Judicial working

While the United States has an established judicial system, the Indian judicial system is rapidly evolving. An accused or a witness in the United States will depose from his place of incarceration, preventing the use of modern technology and excessive trips to New York from Chicago or Los Angeles. Such facilities in India are yet to be built. While a judge in the United States can hold the post for life as long as he enjoys good health, it is slightly different in India. In India. A judge in the District, except for high-ranking retires at the age of 58, retires at the age of 65 from the high court and the high-ranking judge.

Forms of government 

The president is the head of the state in the U.S. and thus his administration is popularly referred to as the presidential form of government. India, on the other hand, has a legislative system of government, while the Prime Minister exercises real power with his cabinet, with the President being only a nominal head. For a term of four years, the President of the United States has a five-year control while the Indian Prime Minister retains a majority in Lok Sabha. Although the United States is following the two-party rule, India has a multi-party system and a dynamic selection mechanism. The Indian Cabinet and the Prime Minister are accountable jointly both directly and indirectly to the Parliament and the people, while the US President has constitutional duties and responsibilities and, of course, to the people. The Prime Minister and all his cabinet members, because of joint responsibility, are accountable, liable, and responsible for a failure to perform their duty and blunder by a cabinet minister in India.

                 

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.

Although there are quite differences, there are also some ‘similarities’ between the two countries like both, the US and India Constitution have a written Constitution, providing for a federal constitutional system under which both Governments exercise their powers and privileges, with the right to equality, to liberty, to the right to discrimination, to freedom of religion, to cultural and educational privileges, to land, and the right of Constitution. The federal government functions in both countries at the core in which different states have acceded. In both the US and the Indian Constitutions the division of powers between three entities-administrative, legislative, and judicial-is given. Each division has a separate capability. While the powers between executive, legislative, and judicial officers in both countries are explicitly divided, these powers can also overlap. Chances are the authority or arbitrariness is exploited. A “checks and balances” mechanism that prevails in both countries is important.

Conclusion

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. Federalism is like a rainbow, each colour is distinct, but they make a cohesive pattern together. A fluid balance between the center and the States must be preserved continuously by federalism. Ultimately, a community and a collection of principles and virtues such as honesty, compassion, and the spirit of cooperation must be established by the citizens and political process. It can also be inferred that certain federalist characteristics are common to both India and the United States. On the other hand, the federal character of India and the USA differ in many regions. But both the United States and the Indian federalism are very popular despite their limitations.

References

• https://www.academia.edu/31442932/COMPARATIVE_STUDY_OF_FEDERALISM_IN_INDIA_AND_U_S_A_CONSTITUTIONAL_PERSPECTIVE
• http://lawtimesjournal.in/comparing-the-model-of-federalism-in-india-and-u-s-a/

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