By Arpit Agrawal :
Structures of Governments
The present structures of governments can be distinguished into three major structures. The most prevalent is the unitary system, where power is held in at a national level and very little power is delegated to the smaller political subdivisions. The least common is the Confederation, which is a union of similar states with only some power being held at a national level. Then there is Federalism, which is an equal sharing of powers between national, local and state governments. However, Federalism is very wide in concept and varies in its structure.
Unitary Government
A unitary state is a state governed as a single entity in which the central government is ultimately supreme.
In unitary states, the central government may create (or abolish) administrative divisions (sub-national units). Such units exercise only the powers that the central government chooses to delegate. Although political power may be delegated through devolution to regional or local governments by statute, the central government may abrogate the acts of devolved governments or curtail (or expand) their powers. A large majority of the world’s states (166 of the 193 UN member states) have a unitary system of government.
The United Kingdom of Great Britain and Northern Ireland is an example of a unitary state. Scotland, Wales and Northern Ireland have a degree of autonomous devolved power, but such power is delegated by the Parliament of the United Kingdom, which may enact laws unilaterally altering or abolishing devolution (England does not have any devolved power). Similarly in the Kingdom of Spain, the devolved powers are delegated through the central government.
Devolution within a unitary state, like federalism, may be symmetrical, with all sub-national units having the same powers and status, or asymmetric, with sub-national units varying in their powers and status. Many unitary states have no areas possessing a degree of autonomy.[4] In such countries, sub-national regions cannot decide their own laws. Examples are Romania, Ireland and Norway.
Confederation
Confederation, primarily means any league or union of people or bodies of people. The term in modern political use is generally confined to a permanent union of sovereign states for certain common purposes—e.g., the German Confederation established by the Congress of Vienna in 1815.
Usually created by a treaty, confederations of states tend to be established for dealing with critical issues, such as defense, foreign relations, internal trade or currency, with the general government being required to provide support for all its members. Confederalism represents a main form of intergovernmentalism, which is defined as any form of interaction around states which takes place on the basis of sovereign independence or government.
Under a confederation, unlike a federal state, the central authority is relatively weak.
Decisions made by the general government in a unicameral legislature, a council of the member states, require subsequent implementation by the member states to take effect; they are not laws acting directly upon the individual but have more the character of interstate agreements. Also, decision-making in the general government usually proceeds by consensus (unanimity), not by majority.
Belgium
Kingdom of Belgium, a country with a complicated federal structure has adopted some characteristics of a confederation under the pressure of separatist movements.
Nevertheless, the Belgian regions and the linguistic communities do not have the necessary autonomy to leave the Belgian state. As such, federal aspects still dominate. Also, for fiscal policy and public finances, the federal state dominates the other levels of government.
European Union
Its unique nature and the political sensitivities surrounding it cause there to be no common or legal classification for the European Union (EU). However, it bears some resemblance to both a confederation (or a “new” type of confederation) and a federation. The term supranational union has also been applied. The EU operates common economic policies with hundreds of common laws, which enable a single economic market, a common customs territory, (mainly) open internal borders, and a common currency among most member-states. However, unlike a federation, the EU does not have exclusive powers over foreign affairs, defence, and taxation. Furthermore, most EU laws, which have been developed by consensus between relevant national government ministers and then scrutinised and approved or rejected by the European Parliament, must be transposed into national law by national parliaments.
Federalsim
There are 2 types of Federalism which are prevalent in the modern nations:
The first form of federalism, which holds the federal and state governments as sovereign and equal, is dual federalism. Entailed in this theory is the idea that the parts of the Constitution are interpreted very tightly. If the constitution does not clearly grant a duty then the federal government has no jurisdiction.
Clear Example here is the United States where the Constitution limits the powers of the Federal Government to a large extent though the Courts have greatly expanded the powers of the federal govt to large extent.
The second type of federalism, which states that the national government is supreme over the states in that the states may find their own way to fulfil federal government regulations so long as their ways are constitutional, is known as cooperative federalism.
India is a key example of this form of Federalism where the Centre is supreme in regards to all constitutional affairs and have provisions of Emergency where the States power can be abrogated entirely.
Defining Federalism
Federalism constitutes a complex mechanism for governance of a country.
It has been evolved to bind into one political union several autonomous, distinct, separate and disparate political entities or administrative units. It seeks to draw a balance between the forces working in favour of concentration of power in the centre and those urging a dispersal of it in a number of units.
There is a distinction between ‘federalism’ and. ‘federations’ where the former is treated as an abstract idea whereas the latter is merely reduced to describe actual system of governments. Federalism is similar in nature with abstract ideas such as socialism and liberalism, and is based on normative concept of human nature and social relations.
The originality of federal system lies in that power is, at one and the same time, concentrated as well as divided. There is a centralisation of administration and legislation in certain respects along with decentralisation in other respects.
At one level, there exists a Central Government having jurisdiction over the whole country and reaching down to the person and property of every individual therein.
At the other level, there exist the regional governments, each of which exercises, jurisdiction in one of the regions or administrative units into which the country is divided under the constitution.
Federalism in India
The adoption of the G.I. Act, 35 as the basis of the new Constitution had the great advantage of making the transition from British rule to the new Republic of India without any break with the past; the old laws and constitutional provisions continued without a break; and thus secured for India the advantage which an evolutionary change has over a revolutionary break with the past. Besides, the G.I. Act, 35 had great merits as an instrument of federal government.
According to the Article 1 of the Constitution of India, India is a “Union” of States, which means a federation of states. There is in a federation, a division of functions between the Centre and the regions, known as the State Governments in India.
From the territorial point of view, Parliament may make laws for the whole of India, or a part thereof under Article 245(1).
Article 254(1) in The Constitution Of India 1949
1. If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
The Indian federalism was not a result of a compact between several sovereign, units but a result of conversion of a unitary system into a federal system. Here, the movement has been from unity to union, from unitarist to federalism, unlike other countries where the historical process has been for separate units to come together to form the federal union.
In West Bengal vs. UOI, the supreme court took note of this process and rejected the claim of the states that they shared sovereignty with the centre.
Second, the past history of India conclusively establishes that in the absence of a strong central government, the country soon disintegrates. This belief was strengthened by the recent partition of the country.
Therefore, adequate precautions have to be taken against any such future contingency by making the centre strong.
Yet, it deviates from those federalism in many respects and establishes its own distinctive features. In the following matters, it is pointed out; the Indian constitution modifies the strict application of the federal principle:
Unique Characteristics of Indian Federalism
- Legislative Relations – Under Article 249, parliament is empowered to make laws with respect to every matter enumerated in the state list, if it is necessary in the national interest.
- Article 249 (1) states Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution supported by not less than two thirds of the members present and voting that it is necessary or expedient in national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force
- In case of an overlapping between the matters of three lists, i.e., union, state, and concurrent list, predominance has been given to the union (Article 246).
- Administrative/executive relations – all planning is at the union level (through planning commission), the state only implement the plans. The executive power of every state has to be exercised as to ensure compliance with the laws made by parliament.
- Financial relations – the states depend largely on financial assistance from the Union.
- Parliament’s power to form new states and alter boundaries of existing states – the very existence of the state depends on the sweet will of union.
- Existence of union territories – these are directly governed by the central government.
- Appointment of governors – the governors of states are appointment by president and answerable to him. There are provisions in constitution under which the governor is required to send certain state laws for the assent of president.
- Inequality of representation in Rajya Sabha – the US Senate accords equal representation to all the states irrespective of their size, the Indian constitution accords representation to various states in the Rajya Sabha on the basis of their population.
- Common All-India Services, centralized electron machinery/ controller, and Auditor-General/Inter-State Councils and Boards.
- Emergency Provisions – under emergency, the normal distribution of powers between the Center and states undergo a vital change, and the center becomes all-powerful.
The Indian Constitution contains a very elaborate scheme of distribution of powers and functions between the Centre and the States.
Under the Constitution there is a three-fold distribution of legislative powers between the union and the states, made by three Lists in the Seventh Schedule of the Constitution.
Distribution of Powers
The scheme of Article 246 is as follows:
(i) Article 246(1) confers on Parliament an ‘exclusive power’ to make laws with respect to any of the matters in the Union List.
(ii) Article 246(3) confers an exclusive power on the States to make laws with respect to the matters enumerated in the State List.
(iii) Article 246(2) confers a concurrent power of legislation on both the Centre and the States with respect to matters enumerated in the Concurrent List. But clear predominance lies with the center.
In the opinion of Prof. Wheare, the Indian constitutional is almost “quasi-federal”… a unitary state with subsidiary federal features, rather than a federal state with subsidiary unitary features. Jennings has characterized it as “a federation with a strong centralizing tendency.”
Austin and A.H. Birch used the term “Cooperative federalism” for Indian system, i.e., it is neither purely federal nor purely unitary, but a combination of both.
Dicey holds that the extent of federalism in India is largely watered down by the needs or progress and development of a country which has to be nationally integrated, politically, and economically coordinated and socially, intellectually, and spiritually uplifted.
Although Dr. Ambedkar thought that our constitution is federal “in as much as it establishes a dual polity,” he also said in the constituent assembly, that our Constitution makers had avoided the “tight mold of federalism” in which the American constitution was forged.
Dr. Ambedkar, one of the principle architects of our constitution considered our constitution to be “both unitary as well as federal according to the requirements of time and circumstances.”
He said that rigidity and legalism were the two serious weaknesses of federalism.
In State of Haryana vs. State of Punjab, the apex court discussed the concept of federation and the federal character of India. It observed in a semi-federal system of government, which has been adopted under the Indian constitution, all the essential powers, both legislative and executive have been conferred on the central government. True federalism means the distribution of powers between a central authority and the constitution units. In this case, the supreme court also held that the decision of one government relating to governance of a state or its execution would bind the successor government when it does not involve any political philosophy. The successor government must complete the unfinished job.
In Kuldip Nayar vs. UOI, the petitioners challenged the representation of the people (amendment) Act, 2003 by which the requirement of “domicile” in the state concerned for getting elected to the Rajya Sabha was deleted, which according to them violated the principle of federalism, a basic feature of the constitution.
The supreme court held that it is no part of federal principle that the representatives of the sates must belong to that state.
There is no such principle discernible as an essential attribute of federalism.
The nature of federalism in the Indian Constitution is no longer res integra (matter not yet decide).
There can be no quarrel with the proposition that the Indian model is broadly based on a federal form of governance but with a tilt toward the center.
Under the Indian Constitution the power and procedure for amendments have been provided under Article 4, Schedule VI and principally under Article 368 of the Constitution. The power to initiate the amendment is vested with the union in all cases. Ratification of the states for amendments are not required. However, Article 368(2) indentifies certain types of Amendments which essentially need the ratification by at least half of the states. The Amendment that requires ratification by at least half of states are provided under Article 368 (2) (a) to (e) of the Indian Constitution. Thus it is clear that the Indian Constitution is rigid also.
In a federal system there seems to be an even more acute need for an impartial agency because the interpretation of the meaning of the constitution includes also the delicate original political agreement between territorial communities from which the whole federal system had issued.
Under Article 131 of Indian Constitution speaks about the original jurisdiction of the Supreme Court in any intra-federal dispute between the Government of India and one or more States, or between two or more state. Thus there is a judicial authority in India, which can ascertain the meaning of the nation’s supreme law, the constitution, and that in light of its findings, can determine the compatibility of any given law or official act, national or local and that has power of judicial review. And all these power has been provided to the Supreme Court under article 131, 137, 141 and 142…………………etc, Chapter IV, Part V of the Indian Constitution.
In S. R. Bommai v Union of India, several judges have characterized the Indian Federalism in different ways. SAWANT, J., has observed that
“Democracy and Federalism are essential part of our Constitution and are parts of its basic structure.”
JEEVAN REDDY, J. observed
“The fact under the scheme of our Constitution, greater power is conferred upon the Center visà-vis the State do not mean that State are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the power reserved to the states.”
During emergency, under article 352, the centre gets more overriding powers vis-à-vis the State. It can be directions to the way they should exercise their executive power [Art. 353(a)]. During a financial emergency, the Centre can give directions to a state [art. 360(3)], and, under art. 356, the Centre can take over a State Government when it cannot be carried on in accordance with the Constitution.
The finance freedom of the state that is also not fulfilled. Under article 280 (3) (a) of Indian Constitution, the Finance Commission has been provided power that it shall be the duty of Commission to make recommendations to the President as to the distribution between the Union and the States of the net proceeds of taxes……………………, but the Union was not satisfied with this provision and it makes a body i.e. Planning Commission to decide in the matter of finance. By the de jure authority Prime Minister is appointed as Chairman of Planning Commission and the vice-chairman is appointed by Prime Minister itself. By this body near about 70% of taxes go to center and only 20% goes to the states.
United Kingdom – Federalism within a Unitary Government
The United Kingdom, despite being composed of four countries (England, Scotland, Wales and Northern Ireland), three of which have their own cabinet, legislature and First Minister, has traditionally been a unitary state, governed by the Parliament of the United Kingdom in Westminster.
Instead of adopting a federal model, such as that of India, the United Kingdom continues to employ a system of devolution, in which political power is gradually decentralised. Devolution differs from federalism in that authority ultimately remains with the British Government, and as such the United Kingdom remains a de jure unitary state, where an Act of Parliament could theoretically remove these powers.
Devolution has only been extended to Scotland, Wales, Northern Ireland and Greater London (with differing powers), and London remains the only region of England to have significantly devolved power.
Devolution
The Government of Ireland Act 1914 (Home Rule Act) is regarded as the beginning of devolution in the United Kingdom, granting Ireland home rule as a constituent country of the United Kingdom. After the partition of Ireland in 1921, Northern Ireland retained the Parliament of Northern Ireland, however, Northern Ireland was later put under direct rule and the Parliament was suspended during the period of The Troubles.
Key events, and modern examples, concerning devolution include the Scottish devolution referendum of 1997, Welsh devolution referendum of 1997 and Belfast Agreement (Good Friday Agreement). All of these events have ensured that three of four constituent countries now, to a certain extent, have autonomy.
Devolution differs from federalism in that the devolved powers of the subnational authority ultimately reside in central government, thus the state remains, de jure, a unitary state. Legislation creating devolved parliaments or assemblies can be repealed or amended by central government in the same way as any statute.
So, in essence a simple majority in the British parliament can nullify any acts passed by Devolved parliaments.
The devolved territories in some senses resemble ‘states’ within a federal system. Yet devolution does not amount fully to a federal constitution for the UK, and many of its advocates and instigators have specifically disavowed federalism as an objective. Devolution came about in response to national pressures arising in various ways and to various extents from Northern Ireland, Scotland and Wales.
Yet, though different in form the devolved structure bears resemblance to quasi federalism or cooperative federal structure in India.
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
This case dealt with the issue of whether the British Government had the power to exit European Union simply by way of a formal notification or whether it would require parliamentary sanction.
The UK Supreme Court unanimously held that such a position was not maintainable as the Executive did have the power to exercise Crown’s Prerogative.
The court held that the Government had no power to trigger notification under article 50 of the Treaty on European Union (TEU), because it would remove a series of rights created by Acts of Parliament. The principle of parliamentary sovereignty required that only Parliament could take away those rights.
But less attention was paid to the other key issue decided in Miller—which is that devolved parliaments have no legal right to refuse their consent to such legislation. On that issue, the UK Government won its case unanimously. In fact, Miller relates not just to the rights of one parliament at Westminster, but to the rights of four parliaments in each of the UK’s four capital cities.
This devolution dimension is highly important, for it goes to the very existence of the United Kingdom. Brexit is revealing the fractures within Britain. Leaving the European Union may lead to the breakup of the UK, which is not a unitary state, although there was just one EU Referendum throughout the UK. But of course, Scotland and Northern Ireland voted in favour of remaining in the EU and argue that their votes should also be respected.
In Miller, lawyers for the Scottish, Northern Irish and Welsh governments argued that legislation devolving powers to Holyrood, Stormont, and Cardiff required agreement of those legislatures before the Article 50 notice was served.
Although devolution legislation was crafted in a way that affirmed the Westminster Parliament sovereign overall, nonetheless in July 1998, John Sewel, while a Minister of State in the Scotland Office, famously stated, “… we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.” It was argued devolved legislatures certainly should have a say because Brexit would massively affect their powers. And (for Scotland at least) it was clear that such consent would not be forthcoming.
But the Supreme Court did not agree with this contention. They unanimously held that constitutional conventions, such as Sewel, are political in nature, and not enforceable by the courts. As much of the famously uncodified British Constitution rests on such conventions, this means that a great deal of it is legally unenforceable.
However, the Scottish argument in Miller went further. For the Scotland Act 2016 made changes that supposedly put the Sewel Convention on a statutory basis by including it in legislation. A similar provision is to be found in the Wales Bill (which is not yet law). Yet the Supreme Court found that embodying the Convention in law does not in fact turn it into law.
The similarities between UK and Indian Federalism.
First, in a federal system, powers and responsibilities are divided between the federal and regional arenas of government in such a way that, “both levels have a significant amount of separate and autonomous responsibility for the social and economic welfare of those living within their respective jurisdictions.”’
In this sense in India there is a clear distinct parliamentary structure at both the Union and the State level having clear power to promulgate acts and levy taxes.
In the UK the all four parliaments have the power to promulgate acts. In fact, Scotland and Northern Ireland even have their own Civil and Criminal Laws.
In UK the power to levy tax are available to the Westminster parliament as well as Scottish and Wales parliament but absent in only the Irish parliament.
Though it can be argued that the British Parliament enjoys supremacy over any devolved parliament but, In India also the Parliament enjoys supremacy over the state legislature by virtue of Article 249 though here a super-majority is needed rather than a simple majority.
Federalism in U.S.A
In the U.S.A., the federation came into existence as a result of the voluntary compact between 13 sovereign states.
It only has one list specifically enumerating the powers of the centre and fall under 18 heads.
The powers entrusted to the Federal Government are thus are specific but have expanded a great deal over time through judicial creativity and activism.
In the words of the U.S. Supreme Court “it is not lightly to be assumed that in matters requiring national action, power which must belong to and somewhere reside in every civilized government is not to be found.”
Most of the powers granted to the centre are couched in very general language and the liberal interpretation of these powers has made the Centre very powerful.
The American federal system consists of four components:
State sovereignty and constitutional limitations on state power
The American federal system, as it now exists, began with the states. In American constitutional theory, upon Independence, the newly-formed states succeeded to the sovereignty over domestic matters that was formerly exercised by the British Crown, and as each new state was admitted to the Union, it automatically became entitled to exercise this power. Thus, state sovereignty is a “given” in the American constitutional system, and the states do not depend on the federal Constitution for the source of their sovereignty.
This means that each state has its own governmental structure, its own system of laws, and its own courts, and possesses the general regulatory and taxation power.
The powers of the federal government
ln terms of allocation of power, the Constitution restricts state sovereignty over domestic matters in essentially three ways. First, it provides that certain powers, very few in number, are exclusively federal powers, in the sense that they cannot be exercised by the states at all, such as the power to enter into a treaty or the power to coin money, or cannot be exercised by the states without the consent of Congress, such as the power to impose a duty of tonnage or to enter into a compact with another state or foreign government.
The relationship between the federal government and the states
Under the Supremacy Clause there is federal supremacy in the event of a conflict between federal and state power. Congress then has the power to pre-empt state regulation over particular issues or over particular areas of activity. Federal pre-emption is very important in practice, and pre-emption cases come before the Court with considerable frequency.
The relationship between the states
Finally, the Constitution requires that Congress admit new states to the Union on an “equal footing” with the same attributes of sovereignty as were possessed by the original thirteen states, and that the United States guarantee to each state “a republic can form” of government,” and protect the states against invasion domestic violence.
The basic feature of Federalism is—
- Division of power
- Independence of state
- Idea of cooperation between general authority and regional authority
- Dual government
- Have be to a rigid as well as written constitution
- Union of autonomous units
- Direct authority over the people of both Government
- Supremacy of Constitution