FEDERALISM

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"FOEDUS"
Latin word which means:
• TREATY/ PACT/ AGREEMENT
• Federalism and Con-federalism both words are derived from the Latin
word 'FOEDUS'.
• Synonymous to one another up till late 18th century.

*** later concept of federalism evolved, now let's peep into the different THEORIES OF GOVT.

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TIMELINE OF THEORIES OF GOVT.
• Divine right theory
• Natural law theory
• Social contract theory

**** there are other theories in between.

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Divine right theory
• Ruler is God chosen.
• Ruling is inherited
• Rulers have divine blood
• Absolute power.
[e.g. Middle ages of Europe, ancient China – Monarchy ]

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Natural Law & Natural Right theory
• System of Rules are derived from NATURE.
• All people possess natural rights.
• PHILOSIPHERS : Aristotle, Thomas Aquinas etc.
• Citizens don’t have to follow a ruler who act against natural law..

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Social contract theory
• people agree to submit to authority of a state & in return state
provide protection to the people submitting.
• A SOCIAL CONTRACT between people & Govt.
• THOMAS HOBES, JHON LOCKE
• Citizens don’t have to follow a ruler who act against natural law..

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Definitions
• K.C. WHEARE - "
-- It is a method of dividing powers,
--so that the general and regional govts are each co-ordinate
and-
--independent in their own spheres and
--not subordinate to one another."

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Definitions
-AV Dicey-
--"Federalism means the distribution of power of the state
--among a number of co-ordinate bodies
--each originating in and controlled by the constitution."

[Distribution of matters ~National importance (Cn.)/Local

concerns(St.)]

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Definitions
-Dr Garner-
--"Federalism means: all the powers are divided---
--between the central and state govt.---
--by the constitution---
--and both are supreme within their respective spheres.

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Federalism
• Central Govt. > State Govt.
• In federalism, there is a founding
document (like the Indian,
US Constitution) that spells out
what powers are given to the
central government and what
powers are kept by the states.
• The state governments do not
determine what powers the
national government has. Instead,
the constitution determines this.
Con-federalism
• State Govt. > Central Govt.
• In a con-federal system, the
"lower" levels of government
(states, for example) have all the
power. They give whatever power
they like to the national
government.
• A modern example is the UN where
the UN only has powers that the
member countries give it. (e.g. EU,
UN)
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Dr K.C. WHEARE Federal Principle
 TEST OF FEDERALISM
1. Division of powers between the govts.
2. General & Regional govts are Co-ordinate, Independent, Not Subordinate to one
another.
3. Exception to the federal rule can be there if the Federal Principle is predominant in
the constitution.
4. Modifications are not as such that in application of federal principle it ceases to be of
any significance to be called as federal Constitution.

(Cont.)

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(Cont.)

 K.C. WHEARE FEDERAL PRINCIPLE TEST ON AMERICAN CONSTITUTION

KC Wheare observed that:-

As an exception, US senate was composed of representatives who were selected by the
legislature of the states.

Thus making the general govt. somewhat dependent on the regional govt.
*** (practiced until 1913)

He called the US constitution absolutely federal as the federal principle was predominantly
retained in the constitution despite being with such an exception.

"Exceptions are permissible provided that the federal principle is predominantly

retained in the constitution."
- K.C. WHEARE. 12
 MAPPING OF FEDERAL AND UNITARY STATES

Russia Italy
Canada
Japan
United States
Australia China
India Philippines
Pakistan Bangladesh
United Arab Emirates Indonesia
Austria Algeria
Belgium Denmark
Ethiopia Kazakhstan,
Germany Kenya
Malaysia
UNITARY STATES
FEDERAL STATES
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FEDERALISM: USA

 Dual Federalism (1789–1945)

Two types of government in the United States, national and state.

National government dealt with national defence, foreign policy, and fostering
commerce.
 States dealt with local matters, economic regulation, and criminal law.

Also called as Layer-Cake Federalism. ( distinct areas of responsibility, and the different
levels rarely overlapped)

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FEDERALISM: USA

-The Civil War and the Fourteenth Amendment (1861–1868)

• Southerners vs Northerners

• The Fourteenth Amendment

-No state can deny any citizen the privileges and immunities of American citizenship.
-Limitation on states’ abilities to deprive citizens of their legal rights.
-Equal protection of the laws

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 FEDERALISM: USA
Industrialization and Globalization (1865–1945)
-The nature of government and politics in the United States changed dramatically in the
late 19th and early 20th centuries because of these two major events.

- The national government assumed a larger role as a result of these two major events.

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 FEDERALISM: USA

 Cooperative Federalism (1945–1969)

- The national government has become integrated with the state and local governments, making it
difficult to tell where one type of government begins and the other types end.

-for example State and local governments administer many federal programs.

- and states depend heavily on federal funds to support their own programs.

- This type of federalism is called Cooperative Federalism, or Marble-Cake Federalism.

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FEDERALISM: USA
 New Federalism (1969–present)
- Since the 1970s, political leaders and scholars of the New Federalism school have argued that
the national government has grown too powerful and that power should be given back to the
states.

-United States v. Lopez (1995)

In March 1992 Alfonso Lopez, Jr., a 12th-grade student in San Antonio, Texas, took a concealed
.38-calibre handgun and five bullets to his high school.

School officials, after receiving an anonymous tip, confronted Lopez, and he admitted that he
had a gun.

Lopez was charged with violating a Texas statute prohibiting the carrying of a firearm on school
grounds.
The state charge was quickly dropped
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FEDERALISM: USA
-United States v. Lopez (1995)
The state charge was quickly dropped.

Later, Lopez was charged with violating the Gun-Free School Zones Act, which made it unlawful
for a person to possess a firearm in a school zone.

his attorneys moved to dismiss the charge on the grounds that Congress had exceeded its
authority by passing the act.

federal district court denied the motion to dismiss, stating that the act was
a constitutional exercise of the well-defined power of Congress “to regulate activities in and
affecting commerce, and the ‘business’ of elementary, middle and high schools…affects interstate
commerce.”

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FEDERALISM: USA
-United States v. Lopez (1995)
 Lopez, who waived his right to a jury trial, was convicted and sentenced to six months in prison
and two years of supervised release.

Lopez appealed his conviction to the Fifth Circuit Court of Appeals, which reversed on the issue
of congressional authority.

It ruled that the law was invalid because it went beyond the powers of Congress under the
commerce clause.

When appealed in SC, The Supreme Court ruled siding with the state govt. that Congress had
overstepped its authority in creating "gun-free school zones Act of 1990."

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United States v. Lopez (1995)

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FEDERALISM: USA
 New Federalism (1969–present)

-In other cases, the court has ruled that state governments cannot be sued for violating rights
established by federal law.

-Overall, the Supreme Court in the 1990s reduced the power of the federal government in
important ways, particularly in relation to the commerce clause.

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ESSENTIALS OF FEDERALISM
• Distribution of powers- (national/ local concerns)

• Supremacy of Constitution- (~authority to organs), (~to be federal)

• Written Constitution- (~are complicated contracts), (~to perform

federal )

• Rigidity- (~amendment)

• Authority of courts- ( ~to guard the distribution as it was intended)

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Distribution of powers
• By the constitution

• Depending upon matter of national and local importance

• For administration and execution of policies for the stability

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Supremacy of Constitution
• The only head controller- Constitution

• Segmentation— Executive, administrative, Judicial

• A fed. State derive its existence only from constitution

"Supreme constitution and written constitution are two essential

institutions to a federal govt. "
- KC WHEARE

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Written Constitution

• Foundations of federal States are COMPLICATED CONTRACTS

• Which isn't possible to maintain without a supreme const. unless the

terms of const. have not been reduced into writing. -KC WHEARE

• To avoid conflicts of power between the tiers of govt.

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Rigidity
• Amendment

• Preserving structure of const.

• Making it difficult for the govt. to alter it.

• RIGID = DIFFICULT TO AMEND = SUPREMACY = FEDERAL

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Authority of Courts
• Maintenance of power distribution

• Legal supremacy of const.

• Interpreter & Guardian of const.

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FEDERALISM: INDIA
• Indian federalism = USA + Canada + Australia

• It deviates from standard Federal principle and Est. its own

distinctive features.

• Several modifications - making it 'Quasi- federal / semi-federal‘

• 'Quasi federal'- given by KC WHEARE.

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FEDERALISM: INDIA
MODIFICATIONS
• LEGISLATIVE RELATIONS:
- Art. 249. Parliament empowered to make laws : STATE SUB mentioned
in St. List. IF necessary in the national interest.
- Art. 246. Generally in cases when any subject overlaps in st./ union/
conc. List then : Domination rests with the Union govt.

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FEDERALISM: INDIA
MODIFICATIONS
• LEGISLATIVE RELATIONS:
- Art. 249. Parliament empowered to make laws : STATE SUB mentioned
in St. List. IF necessary in the national interest.
- Art. 246. Generally in cases when any subject overlaps in st./ union/
conc. List (Schedule 7) then : Domination rests with the Union govt.

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FEDERALISM: INDIA
MODIFICATIONS
• ADMINISTRATIVE RELATIONS:
• Art. 256. COMPLIANCE WITH THE LAWS MADE BY THE PARLIAMENT.
- PLANNINGS at union level BY Planning Commission.
-St. Are there to implement the plans and have to comply.
- Art. 256. St. Executive powers has to be exercised to ensure
compliance with the laws made by the Parliament.

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FEDERALISM: INDIA
MODIFICATIONS

•ADMINISTRATIVE RELATIONS:​
• Art. 256. COMPLIANCE WITH THE LAWS MADE BY THE PARLIAMENT.
- PLANNINGS at union level BY Planning Commission.​
-St. Are there to implement the plans and have to comply.​
-Art. 256. St. Executive powers has to be exercised to ensure compliance with the
laws made by the Parliament. ​

*** Now NITI AYOG (NATIONAL INSTITUTION FOR TRANSFORMING INDIA)

MISSION e.g. Digital India, AMRUT : Atal mission for rejuvenation & Urban Transformation.
​
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FEDERALISM: INDIA
MODIFICATIONS

•ADMINISTRATIVE RELATIONS:​
Art. 354, 356, 360
- National Emergency (Art. 352), the Centre becomes entitled to give executive
directions to a State on any matter.
- President Rule (Art. 356), the President can assume to himself the functions of
State government and the power vested in Governor or any other executive
authority in the State.
- Financial Emergency (Art.360), the Centre can direct the States over certain
financial matters and the President can give other necessary directions, including
reduction in salary of persons serving in the State and the Judges of the High Court.

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FEDERALISM: INDIA
MODIFICATIONS

•ADMINISTRATIVE RELATIONS:​
•Art. 312. ALL INDIA SERVICES:
- Besides the Central and State services, the Constitution under Article 312 provides
for the creation of an additional “All-India Services“, common to both the Union and
States.

- The State has the authority to suspend the officials of All India Services, but the
power of appointment and taking disciplinary action against them vests only with
the President of India.​

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FEDERALISM: INDIA
MODIFICATIONS

•ADMINISTRATIVE RELATIONS:​
•Art. 3. Formation of new states and alteration of areas, boundaries or names of
existing states.
- Parliament may by law:
(a) form a new State by separation of territory from any State or by uniting two or more States or
parts of States or by uniting any territory to a part of any State
(b) increase the area of any State;
(c) diminish the area of any State;
(d) alter the boundaries of any State;
(e) alter the name of any State;

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FEDERALISM: INDIA
MODIFICATIONS
•ADMINISTRATIVE RELATIONS:​
•Art. 3. Formation of new states and alteration of areas, boundaries or names of
existing states.
- PROVIDED that no Bill for the purpose shall be introduced in either House of Parliament

-except on the recommendation of the President

-and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of
the States, the Bill has been referred by the President to the Legislature of that State for expressing
its views thereon within such period as may be specified in the reference or
within such further period as the President may allow and the period so specified or allowed
has expired

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FEDERALISM: INDIA
MODIFICATIONS

•ADMINISTRATIVE RELATIONS:​
•Art. 3. Formation of new states and alteration of areas, boundaries or names of
existing states.
- Explanation I: In this article, in clauses (a) to (e), State includes a Union territory, but in the proviso,
State does not include a Union territory

-Explanation II: The power conferred on Parliament by clause (a) includes the power to form a new
State or Union territory by uniting a part of any State or Union territory to any other State or Union
territory.

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FEDERALISM: INDIA
SCHOLARS & INDIAN FEDERALISM

•DR. K.C. WHEARE [***(1907-1979) Australian academician & Constitutional Theorist ]

- Indian const. almost 'QUASI-FEDERAL' .
- A unitary state with subsidiary federal features. [U+ F -]

• DR. JENNINGS [***(1903-1965) British Lawyer & Academician ]

- A federation with strong centralizing tendency. [U - F +]

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FEDERALISM: INDIA
SCHOLARS & INDIAN FEDERALISM

• GLANVILLE S.AUSTIN[***(1927-2014) American Historian of Indian Constitution ]

- Indian Const. a cooperative federalism.
- i.e. Neither purely federal nor purely unitary but a combination of both. [ U+F ]

• A.V. DICEY [***(1835-1922) British Jurist & Constitutional theorist ]

- Federalism in India is watered down by its needs, progress & development---
- which has to nationally integrated, politically & economically co-ordinated, and
socially, spiritually, intellectually uplifted.

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FEDERALISM: INDIA
SCHOLARS & INDIAN FEDERALISM
• DR. B.R. Ambedkar [***(1891-1956) Indian Jurist ]
-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 mould 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.
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FEDERALISM: INDIA
SCHOLARS & INDIAN FEDERALISM

DR. V.N. Shukla

-VISUALIZATION OF CONTINGENCIES : EMERGENCY PROVISIONS : A MERIT
•When sticking to the strict federal principle can destroy the very assumption on
which our const. is built.

•Criticised : USA, Canada, Australia constitutional positions during world war.

----------federalism does not provide for magnification of federal power.

----------World wars : the constitutions were given extended interpretations by the

Courts that the countries started behaving more like unitary than federal.

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FEDERALISM: INDIA
SCHOLARS & INDIAN FEDERALISM

DR. V.N. Shukla

-CRITICISM : 'QUASI-FEDERAL‘

• He called the term as completely vague as it does not denotes how powerful the
centre is & how much deviation is there from the federal principle.

-Powers are distributed b/w centre & state in a manner that Centre can not intrude
with state concerns in normal times.,--

--but it is not the essence of federalism to say that only so much or more power is
to be given to the centre. (LEGALISM***)
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FEDERALISM: INDIA
SCHOLARS & INDIAN FEDERALISM

DR. M.P. Jain

FEDERALISM : DYNAMIC PROCESS OF NECESSITY
- Nature of fed : historical growth based on necessity

- Accepting same model of federalism : IMPOSSIBLE

- Attributing KC Wheare, he added that fed. varies from place to place depending
upon historical, geographical, economical & political factors.

- He also called 'QUASI-FEDERAL' as a misnomer to our const.’s character mentioning

that Indian fed. is good & unique for itself.

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FEDERALISM: INDIA
•Indian federalism is unique because of its mode of formation, i.e., from union to
states (creation of autonomous units and then combining them into a federation),
and not vice versa. (debatable)

•It is to be noted that term “Union of States” and not “federation of states” is used
in the constitution (the term “federal” or “federation” is not used anywhere in the
constitution).

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FEDERALISM: INDIA

•In a classic federation, the federal government enjoys only those powers that are by
an agreement surrendered to it by the units.

•In India neither the parliament not the state legislation is “sovereign” because each
being limited by the Constitutional provisions affecting the distribution of powers.

•The constitution enshrines the principle that in spite of federalism, the national
interest ought to be paramount.

•Thus, the Indian constitution is mainly federal with unique safeguards for
enforcing national unity and growth.

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 FEDERALISM: INDIA
St. of W.B. v. UOI
AIR 1963 SC 1241

• ISSUE: Exercise of sovereign powers by the Indian states.

• 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 was questioned.

The apex court held that—

• The Indian Constitution did not propound a principle of absolute federalism.

• Though the authority was decentralized this was mainly due to the arduous task of governing the
large territory.

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FEDERALISM: INDIA
St. of W.B. v. UOI
AIR 1963 SC 1241
The court outlined the characteristics—
Indian Constitution is not a "traditional federal Constitution".

1. there is no separate Constitution for each State as is required in a federal state. The Constitution is
the supreme document, which governs all the states.

2. the Constitution is liable to be altered by the Parliament alone and the units of the country i.e. the
States have no power to alter it.

3. the distribution of powers is to facilitate local governance by the states and national policies to be
decided by the Centre.

4. both the legislative and executive power of the States are subject to the respective supreme
powers of the Union.

5. There is no dual citizenship in India.

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FEDERALISM: INDIA
St. of W.B. v. UOI
AIR 1963 SC 1241

• Learned judges concluded that the structure of the Indian Union as provided by the Constitution
one is centralized, with the States occupying a secondary position vis-à-vis the Centre, hence the
Centre possessed the requisite powers to acquire properties belonging to States.

• DISSENT: Justice Subba Rao :

1. Sovereign powers are distributed between the Union and the States within their respective
spheres.

2. As the legislative field of the union is much wider than that of the State legislative assemblies,
the laws passed by the Parliament prevail over the State laws in case of any conflict.

3. In a few cases of legislation where inter-State disputes are involved, sanction of the President is
made mandatory for the validity of those laws.

4. Further, every State has its judiciary with the State High Court at the apex.
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FEDERALISM: INDIA
St. Of Rajasthan & Ors. v. UOI
1977 AIR 1361

• Beg, C.J. observed that:

The extent of federalism of the Indian Union is largely watered down by the needs of progress,
development and making the nation integrated, politically and economically co-ordinated, and
socially and spiritually uplifted.

• The Court then proceeded to list out some of the Constitutional provisions which establish the
supremacy of the Parliament over the State legislatures. [***slide 30]

• In conclusion, the Apex Court held that—

It was the ‘prerogative’ of the Union Parliament to issue directives if they were for the benefit of
the people of the State and were aimed at achieving the objectives set out in the Preamble.

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FEDERALISM: INDIA
Ganga Ram Moolchandani v. State of Rajasthan
AIR 1999 SC 2411

Supreme Court reiterated—

• ‘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 of independent judiciary.

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FEDERALISM: INDIA
Kuldip Nayar vs. UOI
AIR 2006 SC 3127
• 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.

• 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 centre.

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FEDERALISM: INDIA
Kuldip Nayar vs. UOI
AIR 2006 SC 3127

• Under strict federalism, the lower house and the upper house have equal legislative and financial
powers.

• However, in the Indian context, strict federalism was not adopted.

• The Indian union has been described as the “holding together” of different areas by the Constitution-
framers, unlike—

the “coming together” of constituent units as in the case of the USA and Canada.

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