Concept of Federalism …(contd.

Amresh Choudhary
Assistant Professor
Law College Dhanbad, Dhanbad
9973503996
profamresh@gmail.com
 Federation distinguished from a Unitary State

The regional governments in a federal state are not mere sub-divisions,

agents or delegates of the central government, but possess independent
constitutional powers.
Dicey observes (Law of the Constitution 10th Ed., pp.155-57) that
“Unitarianism...means the concentration of the strength of the state in the hands
of one visible sovereign power…Federalism means the distribution of the force of
the state among a number of co-ordinate bodies each originating in and
controlled by the Constitution”.
A federation seeks union not unity. It seeks uniformity, but wants to avoid a
monopoly of political power in one central government. It allows the state
government to solve, and saves the federal government from being involved in,
purely local issues which have no direct impact on national affairs. 2
 Federation distinguished from a Confederation
The federal or national government derives its authority not from the
component states, but from the federal Constitution.
The federal or national government exercises its power as derived from the
constitution directly over the individuals residing in the component States
irrespective of the will of the latter.
In a Confederation there is no Central legislature but in a federation both the
federal and regional organisations have their own legislature, executive and
judiciary.
Federation involves the dual government and a division of power. The federal
Constitution operates as the supreme law for the entire country where as the
articles of Confederation constitutes nothing but a contract, the continuance of
which depends upon the will of the contracting parties.
3
 Federation distinguished from a Confederation
Since the Constitution in a federal State is a legal instrument and both the
union and the state governments are bound by the limitations imposed upon
either by the Constitution, there must be some agency to determine conflicts of
jurisdiction that may possibly arise between the Union and State governments.
This function is performed by the Supreme Court of USA.
Since the Constitution, in a federation, constitutes a Supreme law which
limits the power of both the federal and regional governments, the distribution of
powers as between them cannot be altered by any means short of amendment
of that Constitution. Nothing like this is required to change the articles of
Confederation which depends upon the will of the contracting States.

4
 The legal test of federalism

In determining whether a Constitution is federal or whether it is to be so

interpreted as such, the label with the constitution itself has given unto itself is
not decisive. This is demonstrated clearly by the fact that the word ‘federal’ or
‘federation’ or the like is not used at all in the American Constitution, - the model
of federal Constitution, - even though the Preamble to the constitution of 1787
recites that it was “to form a more perfect Union” that the Constitution of the USA
was being adopted.
I. A written Constitution.
II. Union of autonomous units
III. Dual government.
IV. Direct authority over the people of both Governments.
5
 The legal test of federalism

V. A Rigid Constitution.
VI. Supremacy of the Constitution.
VII. Authority of Courts.
The distribution of powers made by the Constitution must be guarded by the
Judiciary, which is to interpret the Constitution as a ‘fundamental law’ of the land
and to enforce its provision against both the federal and the regional
governments and to invalidate any of their acts which transgresses the
limitations imposed upon them by the constitution.