Assignment topic

Concept of Federalism :
A comparative study of the Indian and American constitutional systems
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Concept of Federalism
Federalism as unity in diversity. Federalism is a political system which creates in
a society broadly two levels of Government with assigned powers and functions
arising from a variety of social, economic, cultural, and political factors.
Federalism is a system of government that establishes a constitutionally specified
division of powers between different levels of government. In simple words,
Federalism is at its core a system where the dual machinery of government
functions. Federalism is a type of government in which the power is divided
between the national government and other governmental units. In in other
words, Federalism is a constitutional mechanism for dividing power between
different levels of government.

Comprehensively, Federal systems are usually associated with culturally diverse

or territorially large countries. Notable examples of federal countries (or
countries with federal- like characteristics, sometimes referred to as ‘quasi-
federations’) include Argentina, Belgium, Brazil, Canada, Germany, India,
Malaysia, Nigeria, Pakistan, Spain, South Africa and the United States. Mainly,
Federalism helps explain why each state has its own constitution and powers
such as being able to choose what kind of ballots it uses, even in national
elections.

There are three ways in which power can be divided between a central authority
and various constituent units of the country:
• Federal
• Unitary
 • Confederation Federalism: a system of government in which the same
territory is controlled by two levels of government. In this system, the
Central Government usually oversees the issues that are of importance for
the entire country, whereas the government at the lower level looks after
issues of local concern.

Characteristics of federalism
There should be different levels of governments, with each having its own
independent sphere of administrative and legislative competence.
Each level of the government should have an independent tax base.
A Written Constitution from which respective governments derive power.
An independent judiciary to adjudicate if conflict arises between the two tiers of
government.

Central government
In federation system, The Central government has control over the states through
different agencies and varied techniques:
• Governor
• Directions to the State Government
• Delegation of Union functions
• All-India services
• Grants-in-aid
• Inter-State Councils
• Inter- State Commerce Commission
• Immunity from mutual taxation

Features of Federalism
The best way to understand the federal system is to learn about its features.
These characteristics combined to reflect the true essence of federalism.
1. The essential feature, which is the definition of federalism is that there are
two levels of governance in the country at least. There can even be more.
But the entire power is not concentrated with one government.

2. All levels of governance will govern the same citizens, but their
jurisdiction will be different. This means that each level of government
will have a specific power to form laws, legislate and execute these laws.
Both of the governments will have clearly marked jurisdiction. It will not
be that one of the government is just a figurehead government.

3. Another important feature is that the constitution must guarantee this

federal system of government. Which means the powers and duties of
both or all governments must be listed down in the constitution of that
country hence guaranteeing a federal system of governance.

4. As stated above the federalism of a country must be prescribed by the

constitution. But it is also important that just one level of government
cannot make unilateral changes or amendments to the important and
essential provisions of the constitution. Such changes must be approved
by all the levels of the government to be carried through.

5. Now there are two levels of government with separate jurisdictions and
separate duties. Yet there is still a possibility that a conflict may arise
between the two. In a federal state, it will fall upon the courts or rather the
judiciary to resolve this conflict. The courts must have the power to
interfere in such a situation and reach a resolution.

6. While there is power sharing between the two levels of government, there
should also be a system in place for revenue sharing. Both levels of
government should have their own autonomous revenue streams. Because
if one such government depends on the other for funds to carry out its
functions, it really is not autonomous in its true nature.
 The purpose of this Division of Power between the tiers of government is
twofold:
• Preventing concentration of power in the hand of one tier of government
• Generating strength of the nation through the Union.

Degree of Federalism in India and USA

In the US, every state has its own constitution unlike in India. The state
constitutions are much more voluble than the federal Constitution. The Indian
Constitution does not incorporate such specific state-level legislations. So its
extraordinary length cannot be explained away by citing the absence of State
Constitutions as a reason. But it is a fact that much of the bulk in the Indian
Constitution is on account of discussions of centre-state relations.

Indian and American constitutional system at a glance;

A Significant difference between Indian and American constitutional system is India

is a Parliament type of government and in America is a Presidential type of
government. The American Constitution is just 4,543 words long. Even if one
includes the 27 amendments since 1789, we get to 7,591 words. In contrast, the
Indian Constitution has 145,000 words and contains 395 articles in 22 parts and
also contains 12 schedules.. The American Constitution has just seven articles and
has been amended a mere 27 times since its ratification in 1789.

Indian Constitution;
India is a federal country. It means it is a federal state with some features of a
unitary government. The constitution of India has essentially prescribed a federal
state of government. The Government at the centre, which is the Lok Sabha and the
Rajya Sabha. Then the various state governments, the Vidhan Sabhas, and the
Vidhan Parishad. And finally, we have the Municipal Corporations and the
Panchayats, which are forms of local governance. Our constitution makes a clear
demarcation about legislative powers and jurisdictions. It is done through the three
lists as below ;
 A. Union List: This includes subjects that carry national importance, like
defense, finance, railways, banking etc. So such subjects only the Central
Government is allowed to make laws.

B. State List: Includes all matters important to the functioning of a particular

trade like transport, Trade, Commerce, agriculture etc. The state
government is the deciding authority for framing laws on these subjects

C. Concurrent List: This list includes topics on which both the Union and
the state government can make laws. These are related to education,
forests, trade unions etc. One point to be noted is if the two governments
are in conflict with these laws, the decision of the Union Government will
prevail, It is the final authority.

India is a Sovereign Socialist Secular Democratic Republic with a parliamentary

system of government. The Republic is governed in terms of the Constitution of
India which was adopted by the Constituent Assembly on 26th November, 1949 and
came into force on 26th January, 1950. The Constitution provides for a
Parliamentary form of government which is federal in structure with certain unitary
features. The constitutional head of the Executive of the Union is the President. As
per Article 79 of the Constitution of India, the council of the Parliament of the
Union consists of the President and two Houses known as the Council of States
(Rajya Sabha) and the House of the People (Lok Sabha). Article 74(1) of the
Constitution provides that there shall be a Council of Ministers with the Prime
Minister as its head to aid and advise the President, who shall exercise his/her
functions in accordance to the advice. The real executive power is thus vested in the
Council of Ministers with the Prime Minister as its head.

Article 1 of the Constitution says that India is a Union of States. The overriding
concern at the time of drafting the Constitution was the “unity and integrity of
India”. This led to a number of factors that gave the Indian Constitution a decidedly
unitary tilt, with several provisions in favour of the Union. Some of them have been
mentioned below:
 • Residuary powers are with the Union Government
• States can be created or diminished without their consent
• Concept of single citizenship, unlike that of USA
• All India Services officers head important positions in States
• The role of Governor in States is very important and he is appointed by the
Central Government
• The system of audit is headed by the CAG, who is appointed by the Central
Government
• The judges of High Courts are appointed by the President

American constitutional system

The Constitution of the United States of America is the supreme law of the
United States. Empowered with the sovereign authority of the people by the
framers and the consent of the legislatures of the states, it is the source of all
government powers, and also provides important limitations on the government
that protect the fundamental rights of United States citizens. The Constitution of
the United States is the supreme law of the United States of America. The
Constitution, originally comprising seven articles, delineates the national frame
of government. Its first three articles embody the doctrine of the separation of
powers, whereby the federal government is divided into three branches: the
legislative, consisting of the bicameral Congress (Article I); the executive,
consisting of the president and subordinate officers (Article II); and the judicial,
consisting of the Supreme Court and other federal courts (Article III). Article IV,
Article V and Article VI embody concepts of federalism, describing the rights
and responsibilities of state governments, the states in relationship to the federal
government, and the shared process of constitutional amendment. Article VII
establishes the procedure subsequently used by the thirteen States to ratify it. It is
regarded as the oldest written and codified national constitution in force.
A comparison between the Indian and American constitutional system

The Indian Constitution differs from the American document in one very important
way. It contains within it sections of text that are mildly condescending towards both
the citizenry and future lawmakers. Although the two documents are similarly
progressive in spirit, there’s a vast gulf of history and context that separates them.
India and the United States (US) are the two largest democracies in the world. In
addition to being democracies, the two nations are also constitutional republics, bound
by a written constitution. However, the attitudes of the general public and the political
establishment towards the constitutions are vastly different in the US and India. In
America, it is the political right and the leaders of the Republican Party who often lace
their rhetoric with references to “constitutionalism” and emphasise the need to have an
“originalist” interpretation of the document. While in India, many sections of the
political right are often sceptical of the constitution, believing that the document is
insufficiently suited to Indian realities and Indian culture.

The American Constitution, for the most part, limits itself to describing the structure of
the federal government and makes no attempt to influence the political agenda in the
distant future. It is left to the political parties and working politicians in posterity to
figure that out.

Scope of the two documents

The scope of the American Constitution is primarily the description of the structure
and powers of the federal government. Unlike the minimalist style of the American
document, the Indian Constitution goes above and beyond describing the constitution
of each arm of government.

The Indian document has eleven articles (343-350, 350A/B, 351) dedicated to
discussing "Languages". The Indian Constitution's discussion on Languages alone
comprises of more articles than the number of articles in the US Constitution as a
whole. In contrast, the American Constitution does not discuss Language at all. The
United States has no “official” or “national” language.
 While the Indian document caters to the heterogeneity of the land, the American
document desists from it notwithstanding the increase in lingual and ethnic
heterogeneity in the US over the past 200 years.

Ratifying the Constitutions

1. The most important and fundamental of all the differences between the Indian
and American Constitutions is the vastly different approaches taken to ratify the
documents. The American document was ratified through a relatively
democratic process wherein each of the 13 states in the Union voted on it
through their ratifying conventions.

2. The ratification of the Indian Constitution was radically different. There is no

Indian equivalent of the Federalist Papers. To get the Indian Constitution into
force, all that was required was the assent of the Constituent Assembly, which
was partly comprised of indirectly elected representatives (elected by provincial
assemblies), and partly comprised of nominated members (for the princely
states). So, this was not a popularly elected body.

3. An even more important point to note is that the Constituent Assembly was
deeply involved in the drafting the Constitution itself. It met over 11 sessions
and 166 days between 1947 and 1950 to discuss the Constitution.

4. In contrast, in the US, there was a very clear separation between the drafting of
the Constitution (done by the Philadelphia convention - a central body with
representation from each state), and the state-level ratification conventions,
which voted on it later.

Objective here is to explain that what is Federalism and a comparative study of the Indian
and American constitutional systems. A constitution is a set of rules that govern a country.

Sanjay Sarraf
20/11/2020