FEDERALISM: A COMPARATIVE STUDY BETWEEN FEDERAL FEATURES IN INDIA AND CANADA - BY ARNAV KADIAN

FEDERALISM:

 

A COMPARATIVE STUDY BETWEEN FEDERAL FEATURES IN INDIA AND CANADA

 

 

By Arnav Kadian

IILM UNIVERSITY GURGAON

 

 

ABSTRACT

 

 

Federalism is a principle which defines a system wherein the government divides its power among the national government and state government. It is dual machinery system upon which a government works. There is a distribution of powers between the central authority and various state authorities. Usually, a federation has two levels of government. One is the government for the entire country that is usually responsible for a few subjects of common national interest. The others are governments at the level of provinces or states that look after much of the day-to-day administering of their state. Both these levels of governments enjoy their power independent of the other. Multiple democracies across the world claim to be a federation, but each of them have a unique structure of governance.

This research paper discusses the significance of federalism in a state. It undertakes a comparative study between federal features in India and Canada on the parameters of division of powers, dual government, citizenship, supremacy of the constitution, and settlement mechanism. Having borrowed the model of federation with a strong Centre, vesting of residuary powers in the Centre and Appointment of state governors by the Centre, from the Canadian constitution into the framework of Indian constitution. The purpose of this paper is to highlight the differences between the federal structure of both the nations.

 

INTRODUCTION

 

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. Twenty-five states have recently been identified as federal states. These include Australia, Argentina, Austria, Belgium, Germany, Russia, Switzerland, the USA, India, Brazil, Mexico, Canada, Nigeria, Pakistan, Malaysia, Ethiopia, Venezuela, the United Arab Emirates. However, about forty per cent of the world population lives in federal states. Out of the eight largest states of the world, seven are federal. China is an exception. Therefore, it would be appropriate to decipher that federalism is popular among larger states but not very popular among small states.

 

There are two kinds of federations:

 

1. Holding Together Federation – In this type, powers are shared between various constituent parts to accommodate the diversity in the whole entity. Here, powers are generally tilted towards the central authority. Example: India, Spain, Belgium.
2. Coming Together Federation – In this type, independent states come together to form a larger unit. Here, states enjoy more autonomy as compared to the holding together kind of federation. Example: USA, Australia, Switzerland.

 

FEDERALISM: MEANING AND ORIGIN

 

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. It refers to a structurally and functionally divided government into national governments and its constituent parts, called provinces or states. The political institutions, their compositions and the functioning of federal states necessarily reflect this associational relationship. Most often, federalism comes into being through either of the two processes: centripetal and centrifugal. In the centripetal process, the constituent units take the initiative in the formation of the federation. The motive behind federation making may diverge from case to case. However, security concerns of the constituent units and desire for economic prosperity are two main pull and push factors in the centripetal origin of federalism. Independent states come together to form a federation if they think they can maximize their security and achieve a higher level of economic prosperity by forming a federation than doing it alone.1

 

Federations also come into being through a centrifugal process when the national government initiates and gives designated powers to the provinces. In this process, the national/ central government divides its territory into various provinces for administrative convenience or meets people’s aspirations for a separate identity. India is an excellent example of this kind of

 

 

1 Chandra, Dr. V. (n.d.). FEDERALISM: CANADA, AUSTRALIA AND INDIA. Egyankosh. Retrieved October 10, 2022, from https://www.egyankosh.ac.in/bitstream/123456789/77265/1/Unit-14.pdf

 

federation. The present structure of the Indian federation is primarily a function of centrifugal tendencies working in the Indian political system. In the Indian constitutional scheme, the central or union government and Parliament have the authority to redraw state borders and create new states 2

1. By adding new territory in the Indian federation (for example, the integration of Sikkim into the Indian Union in 1975)
2. By dividing a state into two or more states (for example, the states like Bombay and Punjab were divided into Maharashtra and Gujrat, and Punjab and Haryana, respectively).
3. By extracting territories from two or more states (for instance, the states of Uttarakhand, Chhattisgarh and Jharkhand were formed by extracting territories from Uttar Pradesh, Madhya Pradesh and Bihar) the national government can also unite two provinces together.

 

FEDERALISM: DEFINING CHARACTERISTICS

 

Federation is identified by some common characteristics shared by different forms of federal states. Cumulatively, the defining characteristics of the federation are division of powers, dual government and citizenship, supremacy of the constitution, written and rigid constitution, dispute settlement mechanisms and bicameral legislature.

 

1. DIVISION OF POWERS:

 

Division of powers is a defining feature of federal states. Power is divided on two bases: territory and functions. Territorially, the power to govern is divided into central/national and various constituent units, popularly known as state/province or regional governments. Every province is made of its fixed territory, population and government. Functionally, power is divided between national and provincial governments. The division of power is done in three ways. In the list system, the constitution enumerates the powers of the national and provincial governments, listing subjects of national concern such as defence and taxation in the Union or national list and subjects or matters of regional concern in the state list. The national and provincial governments have exclusive jurisdiction over subjects listed for them. In addition to national and provincial lists, a Concurrent List falls under the jurisdiction of both provinces and the national government.3

 

1. Duel Government and Citizenship:

 

As a result of territorial division of power and creation or coming together of many constituent units, there are two government levels in federal states: the provincial and national. Coexisting side by side, both the levels of government have their legislature,

executive and judiciary. Both levels of government exercise exclusive power over their citizens in their respective jurisdictions.

Some federal states, such as the USA, provide double citizenship: first of national government and another of the provincial government. In this regard, Switzerland is a special case as it provides three citizenship - the citizenship of federal government, communal and cantonal (district) citizenship.4

 

 

2 Ibid.

3 Pandey, S. S. K. (n.d.). Federalism. Blog.Ipleaders. Retrieved October 9, 2022, from https://blog.ipleaders.in/federalism-in-india-2/

 

 

1. SUPREMACY OF THE CONSTITUTION:

 

The constitution is the cornerstone of a federal state. It is the supreme law of the land that stipulates the territorial and functional division of powers. The constitution is the source of powers and functions of both provincial and national governments. It regulates the relations among provinces and between provinces and the national government. It informs provinces and national government about where their limits start and where the jurisdiction of others begins. The supremacy of the Constitution prevents national and provincial governments from encroaching on each others‘jurisdiction. Since the constitution is supreme, an independent judiciary is the arbiter of the constitution, interpreting the constitution to resolve disputes between the national and provincial governments. Constitutional supremacy provides the foundation for and guarantees the smooth functioning of federal states. 5

 

1. WRITTEN AND RIGID CONSTITUTION:

 

The rigidity of the constitution is a defining feature of federal states. A rigid constitution is a constitution that cannot be changed unilaterally either by states or the centre. In other words, the powers and roles of either constituents or the national government cannot be reduced or increased by either of them alone. The rigid constitution guarantees autonomy and prevents encroachment and infringement of rights by one level of government against another level of government. Dispute 6

 

1. SETTLEMENT MECHANISM:

 

If many provinces live in proximity and share natural resources and culture, conflicts of interests or dispute are likely to emerge. These disputes usually take four forms: between two provinces, among three or more provinces, one province and national government, and provinces and the national government. In such a situation, the dispute settlement mechanism plays a pivotal role in sustaining and strengthening federalism. This role can be played by any institution or a set of institutions. Most often, this is played by the apex courts. In Canada, India and the USA, the Supreme Court plays this role. There may also exist councils or other inter-governmental bodies which bring provinces and national governments together. By facilitating

 

debates, such mechanisms help to solve inter-provincial and national-provincial conflicts at the early stage.7

THE DIFFERENCE BETWEEN FEDERATION AND CONFEDERATION

 

A confederation is a voluntary association of sovereign independent states formed for specific objectives, which is less binding in its character. A central authority is established for achieving common objectives and interests; however, the joining states would not lose their sovereignty, independence and retain the right of secession. The member states of the confederation maintain their respective military and diplomatic representation also. Contrary to that, states entering into a federation lose their sovereignty and separate entity on the global political map.

 

4 Ibid.

5 Ibid.

6 Ibid

 

 

A federation creates a single sovereign state. Federation is permanent, and states lose the right of secession, and any such attempts are considered illegal and unconstitutional. In a federation, both the center and states derive powers from the constitution, and the constitution is the supreme law of the land. Any change in federal powers and functions in a Federation requires a constitutional amendment, and both the center and states cannot modify federal structure unilaterally.8

 

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.

 

A federal constitution establishes a duple polity with Union at the center and the States at the fringe, each dowered with autonomous powers to be exercised in the field assigned to them respectively by the constitution. Both are in a way co-ordinate to powers of each other.

 

In fact, the basic principle of federalism is that the legislative, executive and financial authority is divided between the centre and the states not by law passed by the center but the Constitution itself.

 

Indian Constitution also defines a counterpoise of powers between the Executive, Legislature and the Judiciary. If courts are deprived of the powers, the fundamental rights conferred on the people of the country will become just equal to a decoration and people as puppet in the hands of the sovereign. Thus, it will also lead to a system wayward to that of democracy and undermine its spirit. If the constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure of the Constitution, a law passed in pursuance of such will be beyond the pale of judicial review as it will receive the protection of Constitutional amendment thus made and no organ has power to overrule it.

 

The first significant case where this issue was discussed at length by the apex Court was State of West Bengal V. Union of India9. The main issue involved in this case was the exercise of sovereign powers by the Indian states. The legislative competence of the Parliament to enact a law for compulsory acquisition by the Union of land and other properties vested in or owned by the state and the sovereign authority of states as distinct entities was also examined. The apex court held that the Indian Constitution did not propound a principle of absolute federalism.

 

Article 13 of the Indian Constitution will then become a non-issue and could be easily neglected as even ordinary laws will escape the scrutiny of the courts on the ground that they are passed on the strength of the Constitutional Amendment which is not open to challenge. It was stated under a leading case decided by the Apex Court in the Minerva Mills Ltd. & others V/s Union of India10

 

7 Ibid.

8 Gorbachev, M., 2017. political system - Confederations and federations. [online] Encyclopedia Britannica. Available at: www.britannica.com/topic/political-system/Confederations-and-federations> [Accessed 8 October 2022].

 

 

 

In Pradeep Jain V. Union of India, the Apex Court expressed as India is not a federal State in the traditional sense of that term. It is not a compact of sovereign State which have come together to form a federation by ceding undoubtedly federal features. In Ganga Ram Moolchandani v. State of Rajasthan11 the Supreme Court restated: Indian Constitution is basically federal in form and is marked by the traditional characteristics of a federal system, namely supremacy of the Constitution, division of power between the Union and States and existence independent judiciary. The apex Court in ITC LTD v Agricultural Produce Market Committee12 expressed a similar opinion.

 

In the Kesavananda Bharati vs. state of Kerala13 (1976) case, the Supreme Court ruled that all provisions of the constitution, including Fundamental Rights can be amended. However, the Parliament cannot alter the basic structure of the constitution like secularism, democracy, federalism, separation of powers. Often called the "Basic structure doctrine", this decision is widely regarded as an important part of Indian history.

 

In the 1978 Maneka Gandhi v. Union of India case, the Supreme Court extended the doctrine's importance as superior to any parliamentary legislation. According to the verdict, no act of parliament can be considered a law if it violated the basic structure of the constitution. This landmark guarantee of Fundamental Rights was regarded as a unique example of judicial independence in preserving the sanctity of Fundamental Rights. The Fundamental Rights can only be altered by a constitutional amendment; hence their inclusion is a check not only on the executive branch, but also on the Parliament and state legislatures. The imposition of a state of emergency may lead to a temporary suspension of the rights conferred by Article 19 (including freedoms of speech, assembly and movement, etc.) to preserve national security and public order.

 

What makes India Quasi-Federal?

 

There are many examples which clearly show that the Indian constitution has federal features but it also shows that it has been evident with quasi-federal features too. Some of the examples which show that India is a quasi-federal are followed as-

Division of power between the central and state government but the central government has been given more power than the state government. Parliament can override the laws which are passed by the states for the reason of national interest. Residual powers are vested with the central government. Major taxation powers are also vested with the central government. Parliament does not represent the states equally; however, in a pure federal government the upper house of the legislature has equal representation from the constituting states. But in our Rajya Sabha, the states do not have equal representation. The populous state has more representatives in the Rajya Sabha that the less populous states.

In India, citizens are allotted single citizenship which is not a feature of pure federal government. As in true federal nation, citizens are allotted dual citizenship. First, they are the citizens of their provinces then they are the citizens of their nation.

 

 

9 State of West Bengal vs. Union of India 1963 AIR 1241 1964 SCR (1) 371

10 Minerva Mills Ltd. & others Vs. Union of India; AIR 1980 SC 1789

11 Ganga Ram Moolchandani Vs. State of Rajasthan, 2001 AIR 2616.

12 I.T.C. Ltd. v. Agricultural Produce Market Committee AIR 2002 SC 852

13 Maneka Gandhi v. Union of India (1973) 4 SCC 225; AIR 1973 SC 1461

 

 

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. The Canadian 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. The Canada Act 1982 has further strengthened federalism in Canada. Following federal characteristics can be found in the Canadian Constitution.

 

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 member’s chamber. Nevertheless, now the membership of the house has been extended up to 282.14

 

There is an explicit system of division of power in Canada. The Constitution Act, 1867, is the primary source of division of powers in 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. Similarly, under sections 92, 92(A) and 93, the provincial governments

 

can make laws on local ‘items like direct taxes, hospitals, prisons, education, marriage, property and civil rights. In the Concurrent list, the Canadian constitution enumerates items like agriculture, old-age pensions, and immigration. In case of inconsistency, under section 95, the federal law will prevail on agriculture and immigration, while under section 94A, provincial laws will prevail in the case of the old-age pension. The residual powers rest with the federal Parliament. It implies that powers not listed in the province list will go to the federal Parliament.15

 

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. Contrary to the centralist intentions of many constitution-makers, in its constitutional interpretation, the Judicial Committee of the Privy Council favored provincial autonomy between the 1880s and 1930. However, the situation changed after 1949 when the Supreme Court of Canada became the highest judiciary of Canada. The Supreme Court seems to favour the strong federal government.16

Like other federal states, Canada has two levels of government called federal and provincial. The Lieutenant-Governor acts as Crown‘s representative. If Prime Minister functions as the head of the government at the federal level,

 

 

14 Supra note1

 

the Premiers exercise the executive powers at the province level. In provinces, there also exists a cabinet and ministers. Like the federal government, states have their legislature, executive and judiciary. Initially, the legislature of the four provinces was bicameral. At present, they are single-chambered and elected by people. The size of the provincial legislature varies as Prince Edward Island has only twenty-seven membered legislature while Quebec has 125 members legislature.17

 

CONCLUSION

 

Federalism has proved a valuable mechanism for power-sharing and conflict management in diverse, plural and large societies. The origin, type and functioning of federalism have taken distinct forms and paths in different states depending on situations. . However, a written and rigid constitution, division of power, bicameral legislature, the existence of dispute settlement mechanism, and two tiers of government have been found in every state. Although these characteristics are found in every state, the degree of rigidity of the constitution, distribution of powers between national and provinces, the principles of the representation of states in the federal legislature, and functioning of the dispute settlement mechanism varies from state to state.

 

The functioning of federalism has changed over a period. Different factors like ruling parties and ideology have affected the functioning of federalism. As a consequence of changing role of ruling parties, decisions of the courts and ideology, the functioning of the national and provincial governments, federalism has taken distinct forms and patterns such as quasi federalism, cooperative federalism, bargaining federalism, and competitive federalism. The forces of centralization and decentralization have been competing for overall federal states. Canadian federalism has evolved from conflictual to interdependence phase via cooperation and constructive engagement phase. Indian federalism has evolved from cooperative federalism to competitive federalism via bargaining federalism.

 

Canadian federalism has been affected by the country’s linguistic diversity, centered on the French-English relationship, its regional diversity, and its ethno-cultural diversity. Reflecting the historical presence of two language communities, Canada has two official languages, French and English. Since Canada’s settlement and growth has depended heavily on immigration, approximately 14% of Canadians have other mother tongues. In 1991, almost 1 million people in Canada reported having aboriginal origins, in whole or in part.

Canada’s high degree of decentralization has been driven by factors such as: judicial interpretation of division of powers in favor the provinces; inadequate representation of regional diversity leading to popular support for provincial powers; the growing importance of provincial jurisdiction areas such as health, welfare and education; and Quebec nationalism.

Indian structure of Government is federal with some feature of unitary form of Government. Union and State follow the principle of separation of power but not in the strict sense. Principle of Distribution of powers is usually followed in India. This makes India a federal country of its own types. For easy convenience, it is described as Quasi- Federal Country.

 

 

 

15 Supra note 1.

16 Ibid.

17 Ibid.