DIFFERENT PERSPECTIVES ON FEDERALISM: A COMPARATIVE STUDY BETWEEN INDIA AND THE UNITED STATES OF AMERICA By- Kritika Deb

DIFFERENT PERSPECTIVES ON FEDERALISM: A COMPARATIVE STUDY BETWEEN INDIA AND THE UNITED STATES OF AMERICA

Authored By- Kritika Deb

ABSTRACT

This research paper will explore the idea of federalism and will attempt to compare Indian federalism and the type of federalism prevailing in the United States. This will be done by analysing both nations' federal structures in the context of the classical idea of federalism. This paper will also deal with the evolution of the concept of federalism which mainly states that for effective governance of any nation, the sovereign authority of political power must be distributed among various units. This type of administration where sovereign power is distributed among two governmental units is also known as federation. The nations following such a form of government is referred to as a federal state. In a federation, one federal government administers the entire nation while many state governments coexist side by side and have jurisdiction over their respective regions. A federal constitution is characterised by a  two tier government, also called a dual polity which consists of a central government that, in some cases, has control over the entire nation and state governments that each have control over specific geographic regions. Citizens in a federal nation are bound by the laws of two governments. The Centre and the states share all governmental authority and responsibilities. Thus, each level of government works within its sphere of influence. Indian federalism, which is governed by the Constitution of 1950, serves the second-largest population in the world, which is made up of an unmatched variety of cultures, faiths, languages, and ethnicities. The original 1950 federal model had as its structural foundation the British Government of India Act, 1935. The American Federation can be seen as the product of an evolutionary process in which the independent States first came together as a Confederation in the year 1781 and eventually as a Federation in the year 1789. The colonies that would become the States were acknowledged in the Declaration of Independence, which was adopted on 4th of July in the year 1776. There has always been disagreement over the type of federalism practised in India as our federal Constitution has significant centralising tendencies. Whereas, the style of federalism currently in place in the US is extremely similar to pure federalism.

Keywords: Federalism, democracy, administrative units, quasi-federal, centralising tendency, cooperative federalism, globalization, decentralization.

INTRODUCTION

The concept of civil society along with the preservation of individual rights and the idea of federalism are three of the most significant innovations of contemporary democratic administration. The American Revolution and the subsequent constitutional experience of the United States, as well as the French Revolution and the subsequent Bonapartist experience of France and Europe, are two distinct sets of events that represent these three inventions and the overall philosophic and political revolution that started in the seventeenth century and reached its heights in the late eighteenth century. Federalism is one of the earliest political structures known, extending back more than three thousand years to the Greek city leagues of Asia Minor and the Israelite tribal federation[1].

The American Revolutionary War and its aftermath gave rise to workable solutions for securing individual rights, advancing the idea of civil society, and achieving federalism's immediate goals. The French Revolution, its effects on the rest of Europe, and ultimately the rest of the world, largely worked against democracy and were much less effective. The proper integration of the three inventions is what allows for true democracy, as it always has been[2].

The idea of shared, multi-layered sovereignty, which is institutionalised in a particular set of political institutions, is the foundation of federalism. India's democracy has been rich and resilient because of federalism, which also allowed for the expression and protection of many forms of belonging inside India[3]. The circumstances under which India’s federal system was developed in the years following partition and during the period when the design and reform of federal systems in other nations were being influenced by the need for powerful central governments with the ability to direct national development plans are reflected in it[4].

In contrast to India, which did not formally adopt its constitution until 1950, the United States of America adopted a federal republican state structure in 1789, making the former nation a socialist, independent, secular, and democratic republic. As a result of gaining dominion status in this manner, both countries joined forces with a single central administration that later went by the names Federal Government in the US and Central Government in India. The two states consequently became Federal Republics[5].

THE FUNDAMENTALS OF FEDERALISM

Federalism is an advanced form of government that aids in running a country. It unites numerous autonomous, various, diversified, and independent entities or administrative units into a single political union. It seeks to establish a balance between the factors favouring the dispersion of power among numerous units and those favouring the concentration of power at a single site. Federalism therefore seeks to strike a balance between nationalism and localism, centralization and decentralisation, and unity and variety. Because authority is both dispersed and centralised at the same time, the federal system is distinctive. In certain places, administration and law are more centrally located, whereas in others, they are more decentralised[6]. Dual government, power sharing, supremacy of the constitution, court authority, a written constitution, decentralisation, and a true division of powers are the essential characteristics of federalism. Although the aforementioned principles are not all-inclusive, they do cover the main components of federalism[7].

Large populations, vast territory, and democracies with language dispersion based on jurisdictional boundaries are also characteristics of federal states. India, Canada, Belgium, Switzerland, Spain, and the United States are examples of multinational democracies where federalism assists them in dealing with the issues that arise as a result of their ethnic and linguistic diversity[8].

Federalism is a complicated system of national governance. It creates an alliance of many political unions. The Center and the states share all governmental authority and responsibilities. Thus, each level of government works within its sphere of influence. However, the various governments do not operate in airtight chambers. In a federal country, a variety of intergovernmental ties develop as a result of their frequent interactions[9]. Federalism exhibits a propensity to endure by actively responding to environmental challenges through a process of adaptation through innovative institutional and functional relationships[10].

INDIA'S FEDERAL SYSTEM: STRUCTURE

 AND DEVELOPMENT

Federalism is linked to liberal notions of individuality and freedom. The experience of authoritarian governance has been linked to historical empires. They differ from the absolute state of the 18th century or the nation state of the 19th century as imagined by Hobbes, Bodin, and Rousseau in that they both share varying degrees of sovereign sharing. Before tracing the growth of Indian federalism, it is important to analyse the history of Indian political system as it can be interpreted as an oscillation between sub-continental empires and regional kingdoms, where regional kingdoms are seen as the comparatively more homogeneous forms from which the nation state may have developed and empires as collections of ethnically and culturally diverse polities. The awareness that regional political and administrative units, which can be more or less autonomous, were an enduring element of India's political experience and was thus left over from centuries of empires and kingdoms. When it came time for the British in the form of the East India Company to create institutions for the subcontinent, they faced the challenge of how to deal with India's regional rulers. The Government of India Act of 1935 deepened and expanded India's experience with federalism, much like Mughal and East India Company control and British administration after 1858[11].

The framers of the Indian Constitution were particularly interested in the concept of federalism as a practical tool for the development of Indian subcontinent as a powerful nation and an unified state. The leaders of India's immediate post-independence state were besieged by threats to its security both internally and externally, and faced the challenge of development by perceiving and selecting centralised economic planning as the best way to achieve that goal. Thus, the institutionalisation of strong federalism in the Indian system appears to have been seriously harmed from the start, for both constitutional and political reasons. Nonetheless, the political process has been able to adapt to this design and, in many, if not all, cases, appease it in order to protect regional interests[12].

Currently, the Indian government is divided into two levels: central and federal. The Seventh Schedule of the Indian Constitution establishes a rather clear vertical division of powers between the Central legislature (also known as the Union government in Indian parlance) and the state legislatures, both of which are elected directly. The "Union list," which entails interstate relations, national security, and foreign affairs, is under the control of the Union. The state has authority over issues that are of primary concern to the regions, known as the "State list," which includes law and order, culture, and education. In the event of a conflict, both the federal government and the states may pass laws on the "Concurrent list," which includes topics of common concern like land reform legislation or matters affecting ethnic or religious minorities. The residuary subjects, also known as those not expressly specified in the Constitution, are governed by Central law. Additionally, each list describes the taxes methods used by the two countries to generate revenue. The Center or the State may approach the Supreme Court to have the legal issue authoritatively interpreted in the event of a conflict of jurisdiction[13]. Granville Austin asserts that the Indian Constitution was maybe the first founding document to embrace cooperative federalism[14].

FEDERALISM IN USA

The United States Constitution, which was adopted in 1787, is regarded as the first attempt to create a federal system of government in the modern age. The Dual Federalism system was in place when the United States was first founded in 1787. Both the federal and state governments functioned within their respective domains of authority. The nation transitioned to cooperative federalism in 1937, where the federal government appears to meddle more and more in the internal affairs of the states[15].

Under the U.S. Constitution the provisions that talk about federalism are as follows:

• Section 8 of the Commerce Clause in Article I
• The Supremacy Clause, Article VI,
• The Elastic Clause, also known as the Necessary and Proper Clause, Article 1 Section 8
• The Tenth Amendment,
• The Admission of New States, Article IV, Section 3,
• A guarantee of a "Republican form of government," under Section 4 of Article IV[16].

The Constitutions of some other countries as well later adopted federalism as a system of political organisation. These include Australia, India, Switzerland, and Canada's Dominion. An analysis of the federal political system is strongly justified in light of the recent rise in popularity of federalism as a model of political organisation, the survival of the older federations in the face of challenges posed by changing circumstances like the economic crisis and international wars, globalisation, and international terrorism, and the introduction of functional federalism[17].

Federalism is always in place in the US. If states, organisations, or individuals believe that laws passed by Congress or implemented by the President violate the Constitution, the US Supreme Court has the theoretical authority to step in and decide whether those laws are valid or invalid. In theory, the United States Supreme Court can intervene and rule on whether laws passed by Congress or enforced by the President are constitutional or unconstitutional if states, organisations, or people feel that there are issues with those laws. However, in certain instances, the Supreme Court of the United States has given states the authority to enact restrictive voting laws that make it more difficult for low-income people and members of minority groups to participate in democratic elections. This is what happened in Shelby County v. Holder[18] in 2010, when the court struck down a crucial part of the Voting Rights Act and allowed states to circumvent federal oversight when enacting election laws[19].

COMPARATIVE STUDY BETWEEN INDIAN FEDERALISM AND AMERICAN FEDERALISM

The architects of the American Constitution opposed both unitary and confederal models of governance for the USA. Instead, they concentrated on federalism which was a completely new concept for the budding American government. The union inside a confederation is made up of the member nations. States retain sovereignty, and people who live in those states are considered residents of those states rather than of the federal government. The structure of American federalism is intricate and multifaceted, with elements related to the economy, government, politics, and the constitution. It has been said that the American Federation is an unbreakable Union made up of unbreakable States.

The ultimate authority in a federation over significant foreign policy decisions and the management of either peaceful or aggressive international relations rests with the national (federal) government. Instead of reflecting the interests and objectives of the nation's territorial components, the missions of the diplomatic service and the military forces are those of the federal nation as a whole. When it comes to strengthening the power of central government over the states, the Indian Constitution is more comprehensive than the American Constitution. Under the Indian Constitution, Articles 53(2), 352,353 and 355 reinforces the strong centralising tendency of the Indian federation[20].

Both the US and Indian constitutions are written documents that establish a federal political system in which both governments execute their respective rights. The founding documents of both nations provide for constitutional amendments in order to adapt to changing conditions and the expanding social, political, and economic demands of their respective nations. However, the Indian Constitution is exceedingly lengthy, with up to XXII parts, 395 articles, and ten schedules, whereas the US Constitution is very concise and rigid and only takes up a few pages. Since the US Constitution is exceedingly formal and strict, the provisions intended to change it are equally formal and rigid. There have only been 27 amendments to the US Constitution until now. The Indian Constitution, which went into effect in 1950, has since undergone 105 amendments. As a result, changing the Indian Constitution is simple. Single citizenship is recognised by the Indian Constitution. Contrarily, the US Constitution allows for dual citizenship, meaning that a citizen of the US may also have citizenship in another nation[21].

The Indian Constitution has a two-tier form of government-one of the Centre and the other of the States in which the States have their own constitutional identities and the Central Government is not just a mere union of States. Also, the State government does not represent itself as the Central Government's administrative units or agencies. The Indian Constitution does, however, include some significant centralising tendencies that give the Central Government the most power. There are historical explanations for this centralization; for example, the constitution's founders believed that India would disintegrate if the central government was weak at the time of the country's partition[22].

In Rameshwar Prasad v. Union of India[23], also known as the Bihar Assembly Dissolution Case, the Apex Court questioned the Governor Bhuta Singh's objectivity because President's Rule had been imposed in Bihar following the elections because no political party was in a position to do so. However, when the possibility of a JDU-led government led by Nitish Kumar arose, the Governor recommended that the Assembly be dissolved. The recommendation was hastily adopted by the centre, who did not give it much thought. The Assembly was dissolved the next day, and the Supreme Court ruled that the Governor had not performed his duty properly. Therefore, the governor is not allowed to act as an agent of the central government's ruling party. The SC determined the Assembly's dissolution to be illegal[24].

McCulloch v. Maryland was one of the first cases of the Supreme Court of the USA which reveal and enhance the federal government's dominance over the state governments.  In this instance, the US Supreme Court ruled that the Elastic Clause implicitly granted the Federal Government the power to establish banks. Additionally, the Supreme Court ruled in this case that the Federal Government was implicitly immune from state taxes due to the "Supremacy Clause[25].”

The US Supreme Court determined in Roe v. Wade (1973) that states cannot impose stringent restrictions on abortion. A Texas state statute that imposed such stringent restrictions was found unlawful by the Supreme Court of the United States (SCOTUS). According to the Court, a right to privacy was granted by the Fourteenth Amendment's Due Process Clause. Because of Roe, a woman now has the freedom to get a safe abortion without a lot of interference from the government[26].

In the above-mentioned cases, the Supreme Court of the United States argues that the state had overstepped its bounds in these cases and had thus invaded a territory that belonged to the federal government. Whether there is an equal representation of unequal units in a bicameral system to adequately secure the collective sharing in federal rule making is an issue to be analysed. Because of Article 5 of the United States Constitution, which specifies that "no State, without its consent, shall be 'deprived of its equal suffrage in the Senate,'" equal representation in the Senate is guaranteed in the United States. As a result, each state in the US, regardless of size, has two senators in the Senate. Due to the unequal representation of unequal entities in the Rajya Sabha, there is no collective sharing in the creation of federal regulations in India. Based on each State's population, the Rajya-Sabha does not represent states equally. According to Schedule IV read with Article 80 (2) of the constitution, the States are given seats in the Rajya Sabha (Council of States) of the Parliament[27]. Hence, the US federalism is quite powerful and more rigorous than what its leaders intended when they wrote their Constitution. Its character is more federal than unitary. India, on the other hand, is more unitary than federal and could even be described as a quasi-federal state.

CONCLUSION

The political systems of the United States and India, two of the biggest democratic nations in the world, are built on federalism. The US attained the status of a Federal Republic State in 1789, but India adopted its Constitution in 1950 and now holds the status of a Socialist, Sovereign, Secular, and Democratic Republic. Indian federalism is distinct from American federalism which was one of the earliest significant attempts to create a federal polity. One of the key drivers of the federal system a nation would adopt is its history. Federalism is not a set of rigid rules that can be applied to many historical contexts. Instead, federalism as a governing philosophy has changed according to the circumstances. Thus, it was perfectly accurate for Dr. Ambedkar, the chairman of the drafting committee, to state that "Our Constitution will be both unitary and federal according to the requirements of time and circumstances." Even though the nation is split up into numerous States, this division only serves administrative needs and has no bearing on how well the country functions as a whole[28].

The Indian Constitution is widely acknowledged to have produced a potent central government. India is a vast, continent-sized nation with many different ethnic groups and societal issues. The Constitution's drafters thought we needed a federal constitution that would allow for diversity. However, they also aimed to establish a powerful centre that would bring about social and political reform while halting disintegration. Because of the more than 500 princely states that were to be incorporated into existing States or new States needed to be founded, India at the time of independence was not simply split up into provinces created by the British[29].

It is true that federalism does not consist of a set of rigid principles that are applied to various historical circumstances. Despite this fact the Indian constitution has been criticised for not being federal due to its strong central government. Instead, federalism as a governing philosophy has changed according to the circumstances. And India has benefited much from the sort of federalism that is contained in the Indian Constitution[30].

Although the US and India's federal systems have quite distinct organisational structures, both have successfully preserved the integrity of their respective countries despite divergent histories and problems. Federalism is similar to a rainbow, where each colour is distinct but when combined, they create a pleasing pattern. Federalism has a delicate balance between the federal government and the states that it must constantly maintain. The efficient operation of a federal polity cannot be guaranteed by any legal or institutional formula. Ultimately, a culture and a set of values and virtues like respect for one another, tolerance, and a spirit of collaboration must emerge among the people and the governmental system. Federalism honours both similarities and differences. It is impossible to achieve national unity by minimising disparities[31].

REFERENCES

1. Dhoot, Raghav. "Comparative Analysis of Indian and American Federalism." International Journal of Advanced Research, Ideas and Innovations in Technology 4, no. 1 (2018): 490-496.
2. Sharma, Prerna, Federalism in U.S., and India: A Comparative Study (January 23, 2021)
3. Kumar, Chanchal. "Federalism in India: A critical appraisal." Journal of Business Management and Social Science Research 3, no. 9 (2014): 31-43.
4. Rudolph, Lloyd I., and Susanne Hoeber Rudolph. "Federalism as state formation in India: A theory of shared and negotiated sovereignty." International Political Science Review 31, no. 5 (2010): 553-572
5. Paleker, S. A. "Federalism: A conceptual analysis." The Indian Journal of Political Science (2006): 303-310.

[1] Daniel J. Elazar, Federalism and Democracy,  Israel Yearbook on Human Rights, Volume 26 (1996), Pages: 45–62, DOI: https://doi.org/10.1163/9789004423107_005

[2] Ibid 1

[3] Tillin, Louise. Indian federalism. Oxford University Press, 2019,Available at-https://books.google.co.in/books?hl=en&lr=&id=L8-aDwAAQBAJ&oi=fnd&pg=PT12&dq=federalism+in+india+and+usa&ots=-SZWCTqvXp&sig=BbamYu2eJ7VXfrCeD9BD0g1C6Oo&redir_esc=y#v=onepage&q=federalism%20in%20india%20and%20usa&f=false(Last Visited 15th November, 2022)

[4] Ibid 3

[5] Dhoot, Raghav. "Comparative Analysis of Indian and American Federalism." International Journal of Advanced Research, Ideas and Innovations in Technology 4, no. 1 (2018): 490-496. https://www.academia.edu/download/55765726/Comparative_Analysis_of_Indian_and_American_Federalism.pdf (Last Visited 15th November, 2022)

[6] Dhoot, Raghav. "Comparative Analysis of Indian and American Federalism." International Journal of Advanced Research, Ideas and Innovations in Technology 4, no. 1 (2018): 490-496. https://www.academia.edu/download/55765726/Comparative_Analysis_of_Indian_and_American_Federalism.pdf (Last Visited 15th November, 2022)

[7] Ibid 6

[8] Stepan, Alfred C. "Federalism and Democracy: Beyond the U.S. Model." Journal of Democracy 10, no. 4 (1999): 19-34. doi:10.1353/jod.1999.0072.-Available at: https://muse.jhu.edu/article/16996 (Last Visited 16th November, 2022)

[9] Supra Note 6

[10] Paleker, S. A. "Federalism: A conceptual analysis." The Indian Journal of Political Science (2006): 303-310.- https://www.jstor.org/stable/41856217-Available at: https://aryabhattacollege.ac.in/samplepaper/637215121892375249Federalism%20%20Conceptual%20analysis.pdf(Last Visited 16th November, 2022)

[11] Rudolph, Lloyd I., and Susanne Hoeber Rudolph. "Federalism as state formation in India: A theory of shared and negotiated sovereignty." International Political Science Review 31, no. 5 (2010): 553-572-Available at: https://www.researchgate.net/profile/Lloyd-Rudolph/publication/254105046_Federalism_as_State_Formation_in_India_A_Theory_of_Shared_and_Negotiated_Sovereignty/links/0046353aae5c16cc39000000/Federalism-as-State-Formation-in-India-A-Theory-of-Shared-and-Negotiated-Sovereignty.pdf (Last Visited 16th November, 2022)

[12] Kumar, Chanchal. "Federalism in India: A critical appraisal." Journal of Business Management and Social Science Research 3, no. 9 (2014): 31-43.-Available at: https://www.researchgate.net/profile/Chanchal-Kumar-9/publication/333309772_Federalism_in_India_A_Critical_Appraisal/links/5ce616d7458515712ebb8e9d/Federalism-in-India-A-Critical-Appraisal.pdf(Last Visited 17th November, 2022)

[13] Ibid 12

[14] Sharma, Prerna, Federalism in U.S., and India: A Comparative Study (January 23, 2021). Available at SSRN: https://ssrn.com/abstract=3855630 or http://dx.doi.org/10.2139/ssrn.3855630 (Last Visited 17th November, 2022)

[15] U.S. Government and Politics in Principle and Practice, https://usgovtpoli.commons.gc.cuny.edu/chapter-five-federalism-american-style/(Last Visited 16th November, 2022)

[16] Ibid 15

[17] Supra Note 10

[18] Shelby County v. Holder, 133 S. Ct. 2612 (2013)

[19] Supra Note 15

[20]  Dhoot, Raghav. "Comparative Analysis of Indian and American Federalism." International Journal of Advanced Research, Ideas and Innovations in Technology 4, no. 1 (2018): 490-496. https://www.academia.edu/download/55765726/Comparative_Analysis_of_Indian_and_American_Federalism.pdf (Last Visited 17th November, 2022)

[21] What Is The Difference Between the US And Indian Federalism-Available at: https://blog.ipleaders.in/difference-us-indian-federalism/(Last Visited on 17th November, 2022)

[22] Quasi-Federal Nature of Indian Constitution, http://www.legalservicesindia.com/article/2245/Quasi-Federal-Nature-of-Indian-Constitution.html,(Last Visited 17th November, 2022)

[23] Rameshwar Prasad & Ors vs Union of India & Anr on 24 January, 2006, https://indiankanoon.org/doc/79280249/(Last visited 17th November, 2022)

[24] Ibid 23

[25] U.S. Government and Politics in Principle and Practice, https://usgovtpoli.commons.gc.cuny.edu/chapter-five-federalism-american-style/(Last Visited 17th November, 2022)

[26] Ibid 25

[27] Supra Note 20

[28] Supra Note 22

[29] Supra Note 20

[30] Yogesh Pratap Singh, COMPARATIVE FEDERALISM: TESTING INDIAN CONSTITUTION ON THE YARDSTICS OF IVO D. DUCHACEK, rostrum legal, 2016, available from http://rostrumlegal.com/comparative-federalism-testing-indianconstitution-on-the-yardstics-of-ivo-d-duchacek/ [Accessed on 16th November 2022]

[31]  Dhoot, Raghav. "Comparative Analysis of Indian and American Federalism." International Journal of Advanced Research, Ideas and Innovations in Technology 4, no. 1 (2018): 490-496. https://www.academia.edu/download/55765726/Comparative_Analysis_of_Indian_and_American_Federalism.pdf (Last Visited 18th November, 2022)