D.D. BASU COMPARATIVE FEDERALISM PARTI GENERAL PRINCIPLES CHAPTER 1 INTRODUCTORY SYNOPSIS ¢ of this Volume... 1 | 2. Constitutions: Unitary and Federale. 1. Scope of this Volume After discussing the broad features of a written Constitution in the first volume of this series on Comparative Constitutional Law, we now take up the special features and incidents of a Federal Constitution, from the standpoint of compara- tive law. Obviously, the broad issues involved in the federal system have already been d in the initial volume by way of introduction to a written Constitution a is federal in nature.' Those issues will be elaborated in fuller details in two volumes. In the present one we shall deal with the general features of federalism, while in the next volume will be included the division of particular powers— lative, executive and judicial, as between the Union and the States, under various Federal Constitutions. 2. Constitutions: Unitary and Federal Political Science classified Constitutions as unitary and federal, from the or- 22nisational standpoint, i.e., from the standpoint of distribution of governmental Powers,” vertically, in a system of ‘dual government’. The object of this book, as 4 part of a Series on Comparative Constitutional Law, is to deal with that distri- 1. See Author's Cc t Law. Author's Comparative Constitutioal Law 2 Witeane, Modern Constitutions (1966), pp. 194f, Federal Government (1963), pp. 241. 1ae. | Chap. Introductory bution of powers from the fegal standpoint, tha is, the justiciable issues why The norms of an teat 4 Y but are out. eral d n side the province of this work. It is primarily concerned with the judieig of a federal Constitution, on a comparative leg may be settled by the Courts through legal disput tribution, again, appertain to Political Science and Philosoph: pretation of the provisionsCHAPTER 2 ORIGIN OF FEDERALISM SYNOPSIS 1. Origin of Federals cs a Need for Federalism. : (4) Creation of a state 10 J Rederation oe (©) Authority. from con Regional division of powers ‘ SULIOM sen HE © State and local governments, 4 () Constitution... u + Development of the federal con- (g) S.C. or High Court to ool ee determine disputes... 11 (i) United States 1787 Con- he Dismibation ia Ped Sais al ers, change in " og Yamin, 3] * oR u ii) Essentials of "Americ & Ausialia and Ca Federalism te samen, 5 he iB 2, Federalism ..nnnnn 5 2 USSR 2 5 A Unitary State, Confeder Se ee ee ae Federal State: Distinction between... 7 Ste ene f° Unitary ad federal 7) + Smenclaure oft ti B * Unitary Constitutions... 8 $ Nomenclawe not a swe” guide to (i) UK : 8 federal character ofa Constitution... 13 (ii) France 8 | 5. ‘The legal testof federalism... B + Confederations 5] 6 The legal features of a federal const 2 Pre-Constitution Americ 9 fio snr en) #) Federation en 10 (a) A waitien ‘constitution: A” dual {i) Distinguished from @ Uni government. ae) {O1y SUB vearninnomnrvns 10 (&) Adual Governmeni sce 4 (i) Distinguished from a Con- {¢) Distribution of powers vrs 14 federal ennrncrmeen 10 (@) No unilateral change 4 (a) Authority. 10 {6), Interpretation by Judiciary M4 (b) Power 10 | 7. Can Indian’ Constitution be characte {) Both have leg ed es Pedetal cer crnminmereo ad Executive and Joici ary 1. Origin of Federalism Federalism originated in the experience gal that not merely defence thered from political experiments a but a number of other subjects, ism such as control of foreign affairs, inter-state and foreign commerce, export and import and the like, are matters of national concern which require to be dealt with by a national organisation, while other matters, such as public order, public health, fire, water and electric supply services, which are the Concem of the inhabitants of a particular local area and have problems of their own connected with the exigencies of that particular locality, would be best ad- ministered if entrusted to the representatives of that area.4 Chap. 2—Origin of Federalism Historically, the earliest form of political organisation was not federal unitary. But it is the pressure of economic, political and social circumstances which impelled unitary States (generally monarchical) to enter into alliance with other States for meeting common problems which initially, related to defence It is with the adoption of the Constitution o| f the U.S.A. in 1787 that the concen, of a federal State emerged in a definite shape. K PL ubsequently, the adoption of the federal form in Canada, Switzerland Austra’ gave 4 great impetus Yo federalism and a number of federal consti tions have cropped up since World Wars I and II, notable amongst which are— the US.S.R., West Germany, India, Malaysia (1963), Nigeria (1979). ‘A federation is a compromise between regional autonomy and national inte. ‘Spedetion’ gration. But as we shall presently see, it takes one step in Sdvance of other loose forms of alliance between inde. pendent States in that it creates a national government apart from the State Goy. peaments, Both the national and the State Governments owe their existence and derive their powers from the federal Constitution and both are separate legal entities known to the law. In the Words of Prof. WHEARE — there is a single independent authority for the whole area in respect of some matters and ........ there are independent regional authorities for other matters .......! It is fo be noted that even under a unitary system, there are local or municipal authorities who administer such local affairs, by delega- powers tion from the Central Government; but in a federation, there are two tiers of regional administration, namely, the State and local authorities. In a federation, the State Government is a larger regional unit which comes between the federal and local authorities. Thus, even in a federal system, there may be inferior or subordinate local authori- e State and local gov. ties within a State Government, which means that in a federal ernments organisation, there are three tiers of authorities to which each individual and his property are subject: (a) the national or federal Government; (b) the State Governments which constitute the federation; (c) local authorities, i.e., units of local administration. In such a system, the distinction between the State Govem- ment and a local authority (such as a cily or district administration) lies in this, that the State Government derives its existence and jurisdiction from the national Con- stitution which divides power between the Federal and State Governments, while the local bodies are created or regulated by the Constitution or laws of the State, as sub- ordinate bodies, carrying out the policy and laws of the State Government within the - or ue ue in question. Within each State of a federation, there are a number onthe (ocal a ania such as city, village, county, commune and the like, carrying ils Ieee aration of the respective local areas. The functions discharged) decentralisation of heed also governmental in nature, it being assumed that i E toa better solution of the Ipeal or and powet wo local osanisalions Wout Oe Stale Government 14 Ocal problems than if left to be directly administered by - In fact, historically, the local authorities are older than the Stato provincial governmen yt ts, a ide a politi ini tion ofa Sate Goverersean'd Provide « politcal training ground for the sien @ Regional division of 1. WaHEaRe WHEARE, Federal Gove 2 Sometimes called “Inderalism 5 gh a lawyer Is nt Oe N concerned with history, te would a hous sent oF EE member several broad propositions » well to re yee sn gpere were Loose forms OF Union in the World between § states 1787, modem federalism started with the © esti the United States (1787), whieh is te sql CONSAUTONS. ates prior to Constitution of garded as the model shouelt (i) hc t ‘ peskal © syough the federal principle has been adopted by other countries from the Thoug American precedent, each cor y veo! i 5 uintry introduced varia. ‘ave tions of its own, as a result of which the world of feder 10 consists of di ferent types of federal Constitutions,—none bein: ist qiroplica of the other ena Ther Constitutional eis a consensus of opinion that in any present-day discussion of federal | Jaw, we must include the entire family of these variegated types sides the classi al model of the American Constitution. Nevertheless, when ver any question arises as to what is the “true” federal principle relating to any point, one must inevitably refer to American Constitutional Law for light nin the United States, owing to activist judicial interpretation as well as constitutional practice, federalism has assumed a. shape Which the founding fathers could little envisage. Never- theless, the essentials of American federalism are the same namely, a legally enforceable division of powers between by the written Constitution and the nd enforce that constitutional distribu- Evel {iy Essentials of american Pecderalism the after two centuries, io governments,—federal and regional authority of the Courts to interpret, apply liog of powers, . Federalisn Federalism constitutes a complex governmental mechanism for governance of 2 country. 1 has been evolved to bind into one political union several autono- 3. CL Bryce, American Commonwealth, Vol. I, p. 28. 5 4 Liundston, fevlerarion and Constitutional Change, (1950), pp. 6-7; SAWER, Modern Federalison 1969). p, 186 5. Dav, Walk: The Oxford Companion to Los, 1980. pp. 4620463; MP. Jats: lial Cie (1982). Federaliom: Problems and: Methods; 4 International Bulletin of Sogtil Scenre: > 7 oo (1952); Bown: Problems of Federalism: Wukant: Federal Government: SCOT Ton Constutional Lane, Ce HL. VI; FRIEDRICH & BOWIE, Studies in Federalism: MONWINSE oh rane Federaisn, (1962): SAWL, Modern Federalism, (1969): Rawk, Federlnne sory eaiee, (164). LIVINGSTONE. Federalism aad Constitutional Change 170% Federal Grants in Aid in he U.S.A, (1956), VUAWAUAKA NIRANAYA, 2435 DAWN Tie 335 Indian Federation, 38 Alot Mic Blank hist. 301-64 (1968); JAIN, Federalism nave Oy (1965); Aticrdacon, Centre-Stare Govennmental retaions i the Indian (ee rT ay sale SBB(1968).'8 NJAIN, Freedom of Trade and Commerce Restraiius om the SMU TT eral. in the course of Inter State Trade and Commerce, X JILL 347 (1908), MPAA GS iggy, Lim A thekpeound Popes iv iL] Constutional Developments Since tndependoes sty qya | i" 'ALYAD, Union and State Relations under the Indian Constinunen, a 1 JAIN ge ello ic Union and the State, (1972); Kepart of the Sarkaria Commission z (19g;6 *Chap, 2—Origin of Federalism A seoe or administrative units, mous, distinct, separate and disparate political entities Cr sin decentralisation i seeks to reconcile unity with multiplicity, centralisation divide and share the nationalism with localism.® The two levels o1 Bg chemselves. totality of governmental functions and powers iy under which ther " fa country: ex. Federalism is thus a system of govern enment (legislature and executive Central contrasted with ist simultaneously a federal or ments as a tr eg and govern , and several State of provincial legistalure® ane erive their powers from thy i unitary state, Both federal and slate soul spheres and both operate gi. federal constitution, both are supreme IM PL gingly are mol Exercising pow. rectly on the people; the State gove! ordinate to it (though re they sul ers delegated by the federal govern! wn thy may dal with ss mporaHT where goverment FOM Oe en ies wher . canis appropriate to large counttl , touch’ Fede opal at ficult and could realy De 98 ion i he te tind desires of widely separated are and to cours, Wer a lar pans ate racial, linguistic, legal or other particularities W' ich they lave P : : safeguarded. A federal state requi ten tioning governmental responsibilitic State Government, and conferring th Thus in Australia the Commonwealt is expressly given to it or not express! States, whereas in Canada the Dominio! ters not specially assigned to provincial ment, nor a tution or basic constitutional act appor- he Central Government and the versely. ires a written const! jes between U 1e balance on the states, OF con Ith Parliament has only such jurisdiction as ly withdrawn from the parliaments of the 1 Parliament has jurisdiction overall mat- 1 parliaments. Usually some powers are concurrent. Provisions must also be made for the possibility of conflict between federal and State Government and between State and State. Federalism also necessarily implies judicial review, as the possibility of ultra vires legislation must be considered. The advantages of federalism are that it frees the federal government for consideration of national and international is- sues, and gives state or provincial governments a measure of independence and ability to devise their own solutions for local problems. The disadvantages are that it creates a fairly complicated and legalistic structure, with much opportunity for disputes between federal and State Governments on powers and their exer- 6. DAVID M. WALKER: The Oxford Companion to Law, 1980, pp. 4620463; M.P. JAIN: Indian Con fro sae Vol. 1, Edn., 2003, wherein are cited DiCEY: Law of the Constitution, Ch. Ill 138 (195) hae Problems and Methods; 4 International Bulletin of Social Science, 5 et se (sz Bow g Poblny of Federalism; WHEARE: Federal Government; SCHWARZ, American Conainioal Law, Ch, I & Vis FRIEDRICH & BOWIE, Studies in Federalism; MCWHINNEY, Com tration, Significance, vee SaWER, Modern Federalism, (1969); RIKER, Federalism: Origin, oP» Fae, Guewes, (1960; Linicstone, Federalism and Consitional Change (1950) india ocean te USA, (1956; VUAVAHARA NIRANAYA, 245; JAIN, Some ‘Aspects of (ie Ace ag Po Mak Plank Ins. 301-64 (1968); Jun, Feral India, 6 L$} 285 0968) SN JAW, Freedom Governmental relations ithe Indian Federal System X JILL inte oe cf meee fa Comers Reason te Sates one sale Sef Meleround Paper in IL Consiaonl Becelopaete es eae ab Federal The Union in and State Relations under the evelopments Since Independence 250-54 (1974 Uision andthe States STD): Repo it te Indian Constitution, (1974), JAIN & KASHYAP: Of the Sarkaria Commission on Centre-State relations.A Uninary States Confederation and a Federal State, etc. State, etc, 7 ation in particular, give rise to difficulties, Wve ris iculties, The modern world isthe U.S.A. whi h Se eee Governments, all St having leplslativer exceed ey . 2 ane ve and 1X nae state in the 1 50 State nd cath federalism exits in Cana, Austin and Indi ave shown tendencies to secede, and in other parts al constitutions have came to grief for various 4 ea = Common! ve certain States ealth fede! ment federal : end in West Germany, Switzerland and elsewh ; ' and clsewhere, and some ost satisfactory solution (0 the problems of gl h pore sit stifferences within the United Kingdom would be the | structure there, na tinction a tnitary State, Confederation and a Federal State: petween on Political Science, Constitutions are classified into different cate- dpoints a territorial di tribution of powers and autonomy as ion and the territories constituting the and Federal, and a Confederation ds between a unitary standpoint of tral (or national) organisi rate, Constitutions are classified as Unitary Jans between them. A federal State, in other words, stan Siate and a Confederation. : Briefly speaking, while in a unitary State, all power is vested in a single ‘Unitary and federal Central Government, without imposing any constitu- , tional limitations upon its authority, and the local administrative agencies of the central government, ¢x- he central government might delegate to the latter, in jivides the powers between the central and s from the provisions of that f autonomy belonging to the withdrawn or curtailed From the retween the cen authorities operate as ercising such powers as t federal State, the Constitution d regional governments, each deriving its powers written Constitution, so that there is a sphere o! territorial organisations called States, which cannot be in: Indian Con- 2 DavioM, Wau: The Oxford Companion 10 La 1980, pp. 4620463; M.P. Jav t oi Law. Vol. |, Edn. 2003, wherein are cited Dicky: Law ‘of the Constitution, Ch. I 138, (1959, Federalism Problems and Methods; 4 International Bulletin of Social Science, 5 et. seq {19528 Bown: Problems of Federalism: WAAR Mineral Government; SCHWARTZ, American eal, NV TraEDRIcH & BOWIE, Studies in Federalism, ‘MCWHINNEY. Com ermine feteratism, (1962); SAWER, Modern Federalism, (1969); Ri Federalism: Origin, oP- flan Significance, (1964); LaviNGSTONE, Federalivg Me Conattutional Change (1936): JAIN, reget Grants-in-Aid in the USA. (1956); VUAVAHARA NIRANAYA, 245; JAIN, Some, Aspects of ‘ederatism, 28 JL of Max Plank Inst., 301-64 (1968); J) sm India, 6 JULI, 355 ¢ Indian ‘Federal System, X JILL, wer to tax sale (1965), cen 9): ALICE JACOB, Centre-State Governmental relations 1 th rettue Restraints on the States Pov! MP. JAIN, Indian Federal- 583 (1968); inne 208) SN. JAIN, Freedom of Trade and Com fama Bac 2, later State Trade ‘and Commerce, X JIL1 547 (1968); ian Foray, Stray qksreund Paper in ILL Constitutional Developments Sin ‘independence 250-54 (1974). Ee ae Retacons ander the Indian Constitution, (1974) 10 & KASHYAPA, the Sarkaria ‘Commission on Centre-State relations, te Uni (igggy"@" and the State, (1972); Report of Iain, FederalistChap. Origin of Federalism at the will of the central organisation, called the ST aMGt ie 10 plain the distinction with the minimum of words, one ™ Classi, cal observations of Dicey:* “Uni hands of one visible sovereign power force of the state among a number of controlled by the Constitution”. the strength of the state j ‘in = + concentration of the streng! THER alll: the ANISM. ...means the concentr i rents means the d stribution Of the o-otdinate bodies cach originating in any F ‘atcd with reference The foregoing observations may now be illustrated aa leading instances of each of the categori ( he whole governmental Power j a unitary State, such as that of the U.K, tl /ernn I 5 In a unitary State, such ey Ht a Central Government, which it may keel vs bbe or delegate some of them to Local Governments or sulbsaiv ions which derive their existence and authority , Y as x Overt el | ower’ delegates or agents of the Central Government. The ps © Unitary Constitu- delegated to the iyi A thdrawn, without any fo, cal sub-divisions may be wil tet i way by the Central Government. a e a OF de. f the local authorities thus entirely depends, upon the will of gree of autonomy of the local authorities 7 eee t the Central Government, and the laws made by the Central Legislature in this behalf, It follows that in a unitary State, there is only one Legislature (such as the British Parliament) and that even if any local territorial unit Bee any legislative body, laws made by the Central Legislature are superior to laws made by such ocal authorities which owe their very existence to some law made by the Central Legislature and, there being no constitutional limitations upon the Sovereignty of the Central Legislature, no Court is competent to invalidate any law made by the Central Legislature on the ground of transgressing any federal distribution of powers or the like. UK, The local governments in a unitary system, in short, are entirely dependent upon the Central Government, and, anything done by them contrary to the laws and orders passed by the Central Government become ultra vires and void, On the other hand, no law of the Central Le slature can be invalidated on the ground that it invades the local jurisdiction, The same position obtains where, as in France, the unitary State has a written (ii) France Constitution. Though the’ units of Local Government (called ‘depa (ments’) have their roots in history, they are ‘not mentioned in the French Con: itution, nor have they any constitutional status. As under the previous Constitutions, so under the Constitution of 1958, though a Local Government has an elected Council,and a Mayor, the real administration is run by a Prefect, who j appointed by the Minister of the Interior of the Central Government. The Local Governments, in short, possess only such powers as the the Con gamment grats, and they operate virtually as administrative units of + Picky, Law of the Constitution (Oth Ldn), Pp. 155-57,A Unitary State, Confederation and q Federal § éral State, ete, 1, the jurisdiction of a local body under : short, In or from the Central Government,’ ahaa eve Constitution itself, 4 unitary Co, an upon any Stitution rests on division of Powers fe ni re we take leave of France, we shoul Bett ich the French Constitution of 1958, as “i030 retain the as een of the Government avo pendencies which have become ‘independent : have becor nt’. Arts #3 ‘hat these independent States (which are members ofthe Oa! Nae le ght) may retain their association with the French Republi veo 2 ic, by agree- Id mention N the concey r oncept of ‘Commu. amended jn 1960, has inio. of France with the erstwhile vi air own TH Y : thei © jthout ceasing to be independent, and without requir ents, WHY tion. The Ce A ; ing any amend; ~onstitution. The Community, thus, is a | lendment the Constitution. © ae , ‘Oose voluntary associa af eration of the type of the British Commonwealth, But it camo be en fo anything like a federation. e likened confederation is a loose association of independent States which create a eat union of Central Government for certain limited common Con! purposes (such as defence) while the member States retain their principal powers of government, and the very existence of the Central Gov- emment depends on the will of the member-States, What is no less important is, that in a Confederation, the Central Government has no direct authority over the citizens in the several States; whatever power it possesses has to be exercised through the component States. A Confederation owes its existence, not upon the terms of a Constitution, but upon a compact from which they are free to withdraw at will. The Central authority in a Confederation is a mere agency of the member-States and the latter have powers superior to that agency. The Central agency has no direct relation- ship with the people and the commands of the agency would operate upon the people in each individual State only to the extent the State Government so per- mits, The most notable example of a Confederation is to be found in America be- ween 1781 and 1789, founded by Articles of Confedera- *PreConstitution — & tion. America Curiously, the expression ‘federal government’ was used by the Articles of Confederation to refer to the Central authority set up by the Articles."" It was ‘tse of the weaknesses of the Confederacy that the American States ‘opted the federal Constitution of 1787, which became operative in 1789. But even after i stem by the Constitution of 1787, ‘ adoption of the federal system by the D2 thinking about the nature of a federal union continued, which led to the ‘Vil War between the northern and southern States (1860-1865) and it was the eee 1H, Ghat Devaluation Rules framed under the Governme! inthe nel: though the Swiss Constitution of 1874 i lion ppgamble and some other Articles [e.g Arts. 1,2. 3, 5] it ¢ Makes p's #8 due to a confusion between the two concepts— Confederation a1 1a have their dhen Ge, Swiss Con federation’ a federation is that while the Cantons oe rion, as re- srs psttutions [Ats, 5, 6, they are bound by the provisions of the Nest ereouive and ju 8 cial (aes Nien are assigned thereby to the ‘federal authorit i 19. nt of India Ac on as it describes itself Jf ‘the Swiss Confedera- federation and Federation. WhatChap. 2—Origin of Federalism 10 f the Civil War that firmly established the difference between a C, ation and a Federation, in the United States. ‘ e her hand, is a union of several States into a ¢, Arete SUS el on redetAl government, After the federation is fo, both the federal and the State Governments owe xistence and authority from the federal Constitution which distributes ernmental powers between the federal and the State Governments, whi to be exercised by them, according to the constitutional distribution, pendently of each other. €Ntral, Tmed, their Bov. Ch are inde. ‘eration A federation is thus distinguished from a unitary state in that (a) The Tegional a governments in a federal State are not mere Sub-divisions, a Uy gmished from ceents or delegates of the Central Government, but pos: sess independent constitutional powers. A federation, to recall Diecy,'? seeks union and not unity. (b) It seeks uniformity, but wants to avoid a monopoly of political power in one Central Government. It allows the State Governments to solve, and saves the federal government from being in- volved in, purely local issues which have no direct impact on national affairs. eet tinguished On the other hand, a federation is distinguished from rm a Confederation Confederation in that— The federal or national government in a federation derives its authority not (a) Authority from the component States, but from common source, namely, the federal Constitution. The federal or national Government exercises its powers, as derived from the ae Constitution, directly over the individuals residing in the component States, irrespective of the will of the latter, In other words, both the Union and State governments have separate powers con. ferred by the Constitution which operate directly upon the people within the spheres respectively assigned to each government by the Constitution. In a Con- federation, the union government has no share in the governmental power in re- lation to the people, In a confederation, there is no Central Legislature or Government, but in a (©) Both have legisla. Federation, both the Federal and Regional organisations ‘ Executive and Ju- have their own Legislature, Executive and Judiciary. ary A Confederation remains an association of a plurality of (@) Creation of a state “Sovereign States. But in a Federation, the act of federation Creates a new State, called the Federal Government, which is a separate legal entity and exercises direct sovereignty over the citizens of the various units, within the sphere allotted to the Federation Government by the Constitution. A Federation, thus, creates a single state by the act of union while no single state is created by a Confederation. — 11. For details of colonial period to 1776 to 1865 and si 7 : The Oxford Caress Of colonia et to 1776 us ind since 1865, see: DAVID H. WALKER: The 12. Dicey, Law of the Constinution, (Oth Bd., 1962), p. 141Nomenclature ant feature of a Federation and a division of Power rye most impor or national Government, whi is that it j Mat it involves g y from Ives a dual government ne Constit , Chis pylon sets gate of the Units or State G; ich is not a mere a a 8 Federal jslative, executive and judici Overnments fReNCY oF dele. legislative, t and Judicial, as between hs ‘nd, further, divides eGovernment. Both Governments are up by th Ne Federal Governmen, 44 thority fon i Constitution 80 that the erases tution and both . ew ¢ other. While the jurisc istency e (et joat uO” the wi i Ae ke V hile the jurisdiction of aS Of the one is not the jurisdiction of the Federation (with respec ie is restricted to (0 the subjects ¢ S com. dope territory entire country is on e it by the Constitution) extends over the territory of th et e e Constitution is a legal i Federation, the i a legal instrume : mak tionship between the Union nae Which defines the rela- p¢comitution hand, and between the States thers ie ote ishts 09 meer selves, ag well as the rights and obligations of the people in scincsn oe, other os tae Governments. ‘ation to the Union and 9'° 4 ‘ 3 tution operates as th = Federal Constit | Op as the supreme law {¢ Sit he « e w for the enti whereas the articles of association of a Confederation Constitute nothing but a tact the continuance of which depends upon the will of the contracting partes. since the Constitution, in a federal State of the type of the U.S.A. or Australia; .)$.C.or High is a legal instrument and both the Union and State Gov. cout todetermine dis- ernments are bound by the limitations imposed upon either putes _by the Constitution, there must be some agency to deter- mine conflicts of jurisdiction that may possibly arise between the Union and Sate Governments. This function is performed by the Supreme Court of the US.A. and the High Court of Australia. Since the Constitution, in a federation, constitutes the supreme law which lim- its the powers of both the federal and regional govern- ments, the distribution of powers as between them cannot be altered by any means short of amendment of that Con- stitution. Nothing like this is required to change the articles of Confederation, which depend upon the will of the contracting States. A federal union, in short, is a closer union than a Confederation, and the federal government has a firmer footing than the Central Government in a Confederation.” =—— Nomenclature lis curious that in determining whether a Constitution is federal or whether it ‘Sto be interpreted as such, the label which the Constitution itself has given unto ‘elf is not decisive. This is demonstrated clearly by the fact that U USA, or the like is not used a the Pr tion,—the model of feder ‘"amble to the Constitution of 1787 recites UE) the te tate Infact it was f a Confed s the weak f the loose union of @ Vionof the Sites had since 1781 nesses of the systemmation of the federation under the Consto ‘Asin 1787 [Lipson, Great Issues in Politics, (1981), p. 295) re country (ty Distribution of posers change in he word ‘federal’ or ‘federation’ tall in the American Constitu- al Constitution—even though hat it was ‘to form a more per feration which the UnitedChap. 2—-Origin of Federalism for ¢ Confederation whi fect Union’ (ie, to improve upon the loose for i na being aden been formed in 1777) that the Constitution of the U.S.A. ree i On the other hand, though both the Br i 2nd i Commonwealth of Aust © Austratia and Can word unit — wealth’ in their respective, garded as a true federation of the American a it ies ong ona ernment with ‘co-ordinate powers are an Ove rnment to control the Prove rp veain fr ete ao on Mv ay ia “iso, that some scholars call it ‘qu a ial Constitution calls itsel “Confederation’ (Preamble, 1, 2, 5, 6 etc, and reserves the ‘sovereignty’ of the ° tar as their sovercignty is not limited by the stitution is regarded by scholars jn ‘al Constitution, next to the American,!§_ anton 21 federal principle is modified in one vital respect inasmuch as the Swis Tee cout Gin invalidate laws made by the Cantons but not laws made by the Federal Assembly, so that there is no judicial limitation upon the powers of the Federal Assembly if it violates the boundaries of its own jurisdiction ax - fixed by the Constitution. ; Conversely, though the Constitution of the U.S.S.R. describes itself as a ‘Fed- a eral State’ [Art. 70] and enumerates certain powers as be- aa longing to the Union [Art. 73], and gives the residue to the States called ‘Republics’ [Art. 76], and even gives treaty-making and diplomatic powers to these Republics [Art. 80], there is no judicial review to enforce this demarcation against the Union. It is the Union itself, which is made the guardian of the ‘sovereign rights’ of the Republics as specified in the Constitution [Art. 81). There is no Court to pronounce upon the constitutionality of a law made by the Union or to enforce the distribution of powers. It is the Union law which will prevail over any law made by the Republic, relating to any subject [Art. 74], and itis the Union which is made the final authority as to the observance by the Re- publics of the ‘federal’ Constitution. Since a federation involves a dual government, one national, federal or general Nomenclature of SOVernment and the other—the regional governments ¢ which constitute the federation, different names have to be ascribed by the Constitution to the two authorities, in or- der to distinguish the one from the other. There being no uniformit fer stitutions cre cane ee nothing can be gathered from that name itself, as to the na- the Rea ical system introduced by the Constitution. Thus, in the U.S.A., At Vins, 1 in Indice ig he “United States’ [Art. I, s. Ty Art. Il, s ously, it is called “the Confederate Union’ [Art. 300]; in Switzerland, curi- IArt. 5]; in Australia, it is ‘the Common- eacomernment, (1963), Pp. 16-19. al Government, (1963), p. 20, hag titution Act, 1900, ie at or i united’ and ‘Federal Common. Preambles, Australia is po. Again though the Arts © Switzerland Canton: 31], the Swiss Con! Federal Constitution | Art. Political Science as a full-fledged FederThe legal test of federarig son gc. 1, 61]; in Canada, it is catled yy. . «jas. 1, O11: in C $n West Gey, Dominion 1 eae Fons in the 0) aye! Germenntion ort! 28(3), a . J alis Lepubliets iS teferre ° Ee, Be he Soviet Socialist Reputgiedt [Arig eto the S S-n ol paeynion se ig the nomenclature of the component Units (whi S (Whi ior form) sufficie i i xo co form) sufficient to distinguish a Tou by no y . _ eral fr its ot ai el Thus, while the regional unit is : er Art. 1, 8. 2], Australia tcf. s. 106] and fey, isa. [olf pice ate" S. 106] and India USA canada [8.3 381-— hich isa ame gM i vines ea unitary State, as under the Government of India Rropriate to the sions Fjonal units are called ‘cantons’ [Arts, 1, 2). in lit ACh 1919, ty wea" (Preamble, AMS. 23, 29], while in the 4) les Germ 1 iat 1, 70) fore, the nomenclature is not signitic: if, there! i ot significant for q et Nomenctature nota Particular Constitution is federal of on tining whether fpuucto federal” 10 inquire as to what are the essence oe St proceed argaerofaConstitu- which a Constitution may by i purposes of legal interpretation, We, h ‘awyer or the Court before ns Switzerland, Jermany, they are cathe; + they are called *Repuntic The legal test of federalism To anticipate, the most essential feature of a federal system is the distribution af powers between two governmental units,—national and regional. Now, even ina unitary system, there is some distribution or devolution of Powers as between the national and local governments (pp. 5-6, ante), but no Court can interfere if the national government withdraws or revokes thé powers which had been dele- gated by itself to the regional administration. If, however, the system is federal, the regional units derive their powers, not by delegation from the national gov. emment, but from the same source as does the national government itself, viz., the Constitution, and the distribution of powers between the two units, which is made by that Constitution, is binding on the national as much as on the regional sean ae ature rasa ; "6 Inthe present work, I shall, for the sake of uniformity, refer to the general or national government as ve ‘Union’ and the'regional governments as ‘States. . is (7 Pol. WitaRE (Hederal Government, 1963, p. 20) opines that “the practice of the constitution is of feganhortant almost than the law of the Constitution”. But that is “for the student of the nor Wneieeal government” (e., a student of Political Science or Comparative Government), 6 1 puts himselt observes. From this standpoint, he concludes that the Constitution of Coretda tf th tssifederal, but in its actual working, its system of government is predominnty (tt. Ue ahcTEapinglss to a lawyer. The distribution of powers by the Canadian cos an has 0 viable and that is enough for a lawyer to call it “federal”. . th Tiles Constitution with a division of powers between the Federal Government ieral Assembly has legislated on a subject which its nau”® @wyer’s standpoint, this Constitution must ture in practice, owing to other factors.re Chap. 2—Origin of Federalism jonal government Lransgresg : e genel a regional governme — so that if either the gener carton istribution of powers is act ecto unconstitutional and void. maximum measure, or degree gf of federalism,"* 10 a lawyer Government the boundaries demareated by such consti would be pronounced by the Courts to be u ienti: the While Political scientists lay stress upon i at p autonomy retained by the bert ve as a dsted in is whether the constier that test is of little moment; all that is ‘ n take a case to the Court iy ee viable so that he can tk Benes tonal division of powers i sgressed eter By a region Government or by the at division of powers is trans general Government. ra Federal Constitution gal Features of a Federal |. test of federalism, when analysed, leads to the follow es ‘i ing ° of a federal Constitution. 8 Phe foregoing legal ~e SSyroad features! al (a) A written consti- ‘A federal State requires a written constitution. tution: A dual govern- ment The Constitution sets up a dual government—one goy. i ri the whole territory of th : emment having authority over © tertitory ofthe {b) A dual Governe cuntry or nation which adopts that Constitution (i.e., the ment . for each of the regional units = al Government) and a Government for ea 7 nits federal or national Go Se unimiot the federation), of which the federation is composed (i. The Constitution distributes governmental powers between the two Govern. ments,—federal and regional,—in such a way that the governmental organs of each of the two Governments op- erate with direct authority over the citizens. In the case of a regional Government, it has authority over the citizens residing within the ter- ritory of that Region, while in the case of the federal Government, its authority extends over citizens residing over the entire territory of the country, irrespective of the territorial barriers of the units of the federation. The foregoing distribution of powers made by the Constitution cannot be (@)Notaliaterat changed or amended at the unilateral will of the parties to change the federation, ie., the Federal Government or the Re- gional Governments. The distribution of powers made by the Constitution must be guarded by the (c) Interpretation by Judiciary, which is to interpret the Constitution as the Judiciary pncamental ayy of the, land and to enforce its provisions = against both the Federal and Regional Gove and to invalidate any of thei i imitations ero een bythe Conse acts which transgresses the limitations imposed upon them (c) Distribution of powers qT ‘ aa features will be elaborated in the subsequent Chapters. an Indian Constitution be Characterised as Federal?” ‘ederal Govern as ce een (1963), p. 26.27 stituio : |e Constitutions of Canada es ait x Australia, West Germany on the one bit fara miler two are ect to variations in matters of detail), on the For a biel. discuss et © Stongly characterised by a central bias or balance it fi Coxstirunoy of the question, NAL LAW, Edn. Sth ‘en though the | 20, the 3, Vol. Ir pp Bat Proftably refer to, M.P. Jain: INDIAN