The Similarities Between Canadian And American Federalism

Federalism in its essence is a scheme of decentralization of power. It basically prevents the accumulation of power by the centre, helping to ensure the freedom of the society from an overly repressive or authoritarian government. Federalism derives itself from the concept of federal concept. Federal concept means the idea of organization of state whereby a compromise is achieved between concurrent demands for union and for territorial diversity within a society, by the establishment of a single political system, within which, general (Central) and regional (State) governments are assigned coordinate authority so that neither level of government is legally or politically subordinate to the others. Federalism thus, is a method of dividing powers so that the central and regional governments are independent but still work intimately in a closed domain. It establishes a dual polity, which means that there is a two-tier governmental system with the Central government at one level and the state government at the other level. There has been an intricate scheme between the Centre and the state in regards to the distribution of legislative, administrative and financial powers. Federalism in itself is a very modern concept. Its theory and practices can be traced back as recently as to the American federation which dates back to 1787. The plan of government of a number of adjoining territories in association and neither separated nor combined in one known as the federal idea is very old and had been practiced in ancient Greece, but its applications have gauged only during the last two centuries. Article 1(1) of our constitution says- ‘India, that is Bharat, shall be a Union of States.’ The word union was intentionally selected in place of the conventional nomenclature of federation by the Drafting Committees of the Constituent assembly to indicate two things- (a) that the Indian Union is not the result of an agreement by the states and, (b) the component states have no freedom to secede from it. The latter point means that unlike other federations states have no territorial integrity. The parliament unilaterally can form a new State by separation of territory from another State, increase or diminish the area of any State or alter the boundaries or name of any state by a simple majority. It has also been noted by the Supreme Court that even though the country and people have been segregated into territorial constraints for the purpose of efficient administration, the fundamentality of the country remains unquestionable. The country is one integral whole, its people a single people living under a single imperium derived from a single source. Thus, India is a member of family of federations of which better known members are U.S.A, Canada and Australia. After studying the contemporary traditions of these federations, the Indian constitution has been carefully devised. As a consequence of this, even though India is regarded as federal it is very flexible for the reason that it seeks to alleviate the rigidity and complications of the usual federal constitutions.

This can be seen how the emergency provisions can be efficiently transferred from a federal system to unitary system as to meet the provisions effectively. The Indian Constitution has bestowed upon the centre such formidable powers that not only in times of war or during emergency, but even in times of peace it could, if it so wished, superintend, direct and control the activities of state governments. It has given emergency powers to the president. During the time of emergency, the central government will become powerful. Even it makes the laws on the state list also; the states will lose their voice. Articles 352, 356 and 360 play a dominant role. The national emergency is proclaimed in the country under Article 352, if there is an internal or external threat to the country’s security, unity and integrity. If there is a failure of constitutional machinery in the concerned state, then the President will impose the President’s rule in that state under Article 356. During this period, the state legislative Assembly will be suspended or dissolved. The entire state administration will come under the control of the central government. If there is a threat to the country’s finance, then the President will declare financial emergency under Article 360 which for fortunate reasons has never been applied till today. During emergency, the centre gives financial directions to the states to observe the specified canons of economy. Even the state governments have to reserve the money bills for the consent of the President. Our constitution has given the vast emergency powers to the centre.

In fact, in an emergency the Government of India takes on a unitary form.Dr. Bhim Rao Ambedkar was specifically vocal about the flexibility of the federal system in India. His bright observations have been produced below :

“All federal systems including the American are placed in a tight mould of federalism. No matter what the circumstances, it cannot change form and shape. It can never be unitary. On, the other hand, the (Indian) constitution can 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. But in times of war it is so designed as to make it work as though it was a unitary system.

The status of India as a federal country is itself marred in a number of debates. Scholars, theorists and politicalgurus have been in constant conflict regarding this status. A number of scholars have rightfully, thus, described India as a quasi-federal state, and some even regard it as more unitary than federal. It has been the central issue of a number of debates. K.C. Wheare, a well-known authority on federalism has in Indian context described the Constitution as quasi-federal , and famously classified India as “a unitary state with subsidiary federal principles rather than a federal state with subsidiary unitary principles.” Sir Ivor. Jennings states that India is a federation, with a strong centralizing tendency. Back home in India, the former Chief Justice of India P.B. Gajendragadkar was of the opinion that though the Constitution part takes of some of the characteristics of federal structure, it cannot be said to be federal in the true sense off the term. Prof. P.K.Tripathi, formerly member of the Law Commission of India had also boldly put forth that federalism in India a myth and not reality. In the words of D.D. Basu, the constitution of India is neither purely federal nor unitary, but a combination of both. It is a union or a composite of a novel type. Thus, for a layman while the country might be nothing more than what is called ‘federal’, it is very easy to argue that it is in fact, quasi-federal owing to the unitary features such as the indestructible states, strong centre, single constitution inter alia.

A federal system is a very dynamic one which is not absolute but has to undergo re-examination a number of times. All federal systems have to re-organize themselves as the majority of them encounter complications and disparities in the area of centre- state relations, no matter how detailed the distribution of the functions and resources between the two levels is. Due to the diverse nature of the Indian subcontinent, the disparities in population, the trauma of partition, the euphoria of independence and the problem of integration of the princely states with the Union, the Constitution makers felt it was necessary to establish a strong centre for strategic economic progress and removing the inequalities within the strata of population. In India, there is a lot of focus on the concept of centralisation as well. The Central government usually stands on a higher pedestal than the State government. Large sphere of action has been conferred to the centre sometimes even undermining the position of the states. Thus, India equips us with a very pivotal example of what is known as co-operative federalism. Although, different scholars have different notions about the idea of federalism, there are some points on which the consensus is there. These essential features are listed below:

Division of powers- The division of powers between two levels of governments is perhaps the most remarkable feature of federalism. Federalism means the distribution of powers of the state between the central and the state governments. The basis of such distribution of power is very intricately described. The thought process is such that in the matters of national importance, unvarying policy is desirable in the interest of all the unitswhile the matters of local interest are entrusted to the state governments. A clear division ofpowers so that the units and the centre are required to enact and legislate within their sphere of activity and none violates its limits and tries to encroach upon the functions of others but still keep checks and balances on each other. The first two articles of part XI deal with the most central aspect of the distribution of powers, the competence of the Union and provincial legislatures as elaborated in the legislature lists. The third provision vests residuary power in the Union.

Supremacy of constitution- The existence of a federal state is derived from the constitution. It is regarded as the ‘Grandnorm’, the apex rule of the state. Prof. K.C. Wheare has thus, rightly said that these two institutions i.e. the supremacy of the constitution and the written constitution are the indispensable foundations to a federal government. Supremacy of the constitution is essential if the government is to be federal & the written constitution is essential if the federal government is to work well.

Written Constitution: As seen from the previous point, the importance of a written constitution becomes indisputable. It will be practically impossible for a country to maintain the supremacy of the constitution. The division of powers between the centre and the states, unless, reduced into writing hence becomes practically impossible. Henceforth, the Indian constitution is a written document containing 395 Articles and 10 Schedules, and therefore fulfils the basic requirement of a federal government. In fact, the Indian constitution is one of the most elaborate constitutions of the world. All the modern federations like the U.S.A., Australia, Switzerland have written constitution in nature. However, it is interesting to see that U.S.A., in addition to the federal constitution, each state has its own constitution. The Indian constitution clearly demarcates the powers between the centre and the state giving more centralized power to the centre fulfilling the long-lost dream of Akhand Bharat. Dual polity and a clear written constitution are absolutely essential for the functioning of federalism.

Rigid Constitution: As it is evident from the above written points, the corollary of a written constitution is its rigidity. The procedure of amendment is quite complicated and difficult in a rigid constitution.However, this does not mean that the constitution should be rendered legally unalterable.The Indian constitution is largely a rigid constitution. All the provisions of the constitution which concern the federal state relations can be amended only by the joint actions of the state legislatures and the union parliament. Such provisions can be amended only if the amendment is passed by a two-third majority of the members present. Especially, this principle has been playing an important and key role in the working of federal government. The judiciary too has occupied a very important status in federal countries like the United States, Switzerland, Canada, Australia and India. The constitution has provided for a Supreme Court , and every effort has been made to see that the judiciary is independent and supreme. The Supreme Court of India has the power to declare a law unconstitutional if it grossly violates any provisions of the constitution. In order to ensure the impartiality ofthe judiciary, our judges cannot be removed by the executive and their salaries cannot be curtailed by the Parliament. Most of the federal governments have given more prominence to judiciary, and in these federations the doctrine of judicial review has been playing a dominant role. In India too, the federal judiciary is the highest court ofthe land. It also acts as a tribunal in solving the disputes between the centre and the states.

Bicameral Legislature:The importance of bicameral legislature cannot be negated under any circumstances. This is due to the reason that it is in the upper house of the parliament the representation to the constituent units (states) is given. Constitution of India also provides for a bicameral legislature at the Centre consisting of the Lok Sabha and the Rajya Sabha. Lok Sabha consists of the elected representatives of people and as earlier mentioned the Rajya Sabha consists of the representatives elected by State Legislative Assemblies. In fact, most of the modem federations have adopted the principle of bicameralism. Among the many instances, America, Canada, Australia, Switzerland, and India have adopted the bicameral system. Dr. Herman Finer, the popular American Historian has observed that legislatures bicameral for two widely popular reasons as to be a part of federalism and as the result of a desire to check the popular principle in the Constitution.

Conflict is inevitable in democracy. Issue of federalism rooted so core in complications has not been untouched from it either. But the Judiciaryhas time and again proved to be the overseer of democracy has tried to uphold the fundamental democratic idea of federalism and in extension, the rights of the constituent states. This was explicitly seen in the famous case of S.R. Bommai v Union of India. It is a landmark case in defining the powers of the Centre with respect to Art 356 of the Constitution that deals with emergency provision where the President can impose his rule over the State which is somewhat of a unitary feature in the federal country. The Centre State relationship and its efficiency had been dealt in a better manner in this case. Many reports suggested certain recommendations on the smooth functioning of the same without any conflicts. The recommendations were based on (1) Administrative Reforms Commission 1969; (2) Rajmannar Committee 1969; and (3) Sarkaria Commission 1987. The Governor of Karnataka had reported to the President that there were disagreements and defecations in the current decision party as nineteen letters were sent to him by the council of ministers from pulling back their support. He likewise expressed that on the withdrawal of the help in the decision party, the Chief Minister (S. R. Bommai) likewise neglected to bring in which is improper under the Constitution.Seven out of the nineteen legislators complained about misrepresentation in their respective letters and therefore, the Chief Minister and the Law Minister met the Governor the same day to summon the Assembly to prove the confidence of assembly in his government. The same was forwarded to the President through telex message. But on the very same day, Governor sent another report stating that the Chief Minister had lost confidence of the majority of the House and requested for President’s Proclamation under Art 356 and eventually the same was granted.A writ petition was filed challenging the validity of the Art 356 of the Constitution. The federal nature of the constitution was put to test and to what extent the provisions of Article 356 hold true to the Indian Union and its constituents and after determining the extent whether the scope of judicial review be held applicable or not. A nine-bench judge, famously, gave some well-known opinions in this case which has given what the federal nature of the Constitution of India is and are produced as follows-

President’s Rule in certain states was held to be in violation with the Constitution and eventually restored its original position. It is a discussion of another matter that fresh elections had already taken place and the subsequent new Governments were already installed.

They have further stressed that the application of the principle of a Federal State of American Constitution would be misleading on the Indian Constitution. The concept of Federalism cannot be followed in its strict sense in India.

It was also seen that the nine Judges in their opinions has given that there is no harm in Art 356 been put to judicial review. There are provisions envisaged in the Art for the President to satisfy. Though the satisfaction is subjective, they rely on the objective facts and so judicial review is permitted. But the parameters in which judicial review can be carried on differed from one opinion to other. They have a few indifferences as to the widening the scope of judicial review and narrowing it down. Further, it was said that invoking Art 356 of the Constitution is the last-resort power in the hands of the President.

A number of principles were also laid down by SC in this case, the important ones being of such paramount importance that they are followed even today.

1. Floor Test i.e. Majority shall be tested on floor of the house
2. Centre to give warning to state and time period of one week to reply.
3. Judicial Review to be applied on satisfaction of president behind intention of such imposition.
4. Art 356 to be applied only in case of breakdown of constitutional machinery not administrative machinery.

Furthermore, the case put an end to the arbitrary dismissal of State governments by a hostile Central government. And the verdict also categorically ruled that the floor of the Assembly is the only forum that should test the majority of the government of the day, and not the subjective opinion of the Governor, who is often referred to as the agent of the Central government. The court very wisely noted, "The Chief Minister of every State who has to discharge his constitutional functions will be in perpetual fear of the axe of Proclamation falling on him because he will not be sure whether he will remain in power or not and consequently he has to stand up every time from his seat without properly discharging his constitutional obligations and achieving the desired target in the interest of the State,”. This case came to limelight during the recent elections in Karnataka where the very basic essence of federalism and the Governor’s role posed a question. The case was discussed at length everywhere from all the TV shows to the twitter rants by the members of ruling party and opposition party alike. It was said that this judgment helped in preserving the constitutional sanctity which seemed to be lost in these times of ‘democratic’ society.

It has been sixty-eight years since the Constitution of India came into force. There is a very large body of opinion in the country which holds that a review of working has become necessary. It is undeniable that a real ‘constitutional problem’ exists. Not one of the major institutions and high offices established by the Constitution has worked satisfactorily. India’s federalism has suffered grievously at the hands of successive governments at the centre, regardless of their political face and uniform disdain for constitutional norms and values, or principles for political morality. The office of Governor of state has been systematically abused for political ends by those in New Delhi who were conferred thepatronage for the very reason. States such as Karnataka have asserted their linguistic and cultural rights in the wake of the Centre’s interventions such as a promotion of Hindi. Over the last couple of decades there has been a shift in political and economic power from the Centre to the States. While some have felt that this trend would reverse after the formation of a Central government with a simple majority for the first time in 25 years, Prime Minister Narendra Modi has sought to assuage such concerns by invoking the idea of “cooperative federalism”. The 14th Finance Commission, in 2015, recommended raising the share of States in the divisible pool of Central taxes from 32% to 42%. However, beyond this measure, the Centre has not inspired much confidence regarding its commitment to federalism. The socio-demographic and regionalism issues that the country faces also seeks to undermine this theory. A vibrant example of cooperative federalism can be seen in GST. Finance Minister Arun Jaitley empathetically added that all decisions in the 27 meetings of GST Council were taken by consensus in the spirit of cooperative federalism.Indian political modernization appears to have reached a stage where an open, decentralised system will be able to cope with system problems while at the same time push ahead toward economic, social and political modernity. In the ultimate analysis, however, Indian federalism-in the future, as in the past-is likely to remain a flexible, pragmatic and an easily reversible imperfect process.It was stated by Professor Reginald Coupland that, however loose the federal tie might be, however wide the autonomy of the Provinces in law, the intentions of the Constitution could in fact be contravened and a federal system converted, by unconstitutional but none the less effective means, into something like a unitary system. A democratic constitution cannot be worked by political parties which function undemocratically. Nor, if the sense of political morality is weak. As Pandit Hriday Nath Kanzru said in the Constituent assemble on 16th June 1949: ‘If we cannot expect common honesty from persons occupying the highest positions in the discharge of their duties, the foundation for responsible government is wanting, and the outlook for the future is indeed gloomy.’ Federalism is ultimately based on trust between its various constituent units. If a set of States perceive that their progress is being penalised, the viability of such a federation comes into question. While the southern States contribute to the nation economically, they don’t occupy a central space politically and are further marginalised culturally. Finally, unless the concerns regarding fairness are addressed from constitutional, financial and cultural fronts, the fault lines developing in our federation could deepen further.