Module: 2

FEDERALISM

Introduction

The word ‘federation’ has been derived from the Latin word ‘foedus’ which means treaty,
contract or compact. Thus, a federal state is seen as a compact or association of
states/provinces due to an agreement or treaty. It is an arrangement by which many relatively
autonomous parts come together to make a whole.

A state can be classified as federal or unitary based on the division of powers or absence of
division of powers, between the national and provincial governments. In a federal system, the
constitution formally divides the powers between the centre/national and states/provinces,
whereas in a unitary system, power is concentrated in the central/national government,
though it may devolve certain powers to the local governments. Federalism is an essential
concept of comparative politics.

Characteristics of Federalism

Federation is identified by some common characteristics shared by different forms of federal

states. Cumulatively, the defining characteristics of the federation are division of powers,
dual government and citizenship, supremacy of the constitution, written and rigid
constitution, dispute settlement mechanisms and bicameral legislature. Let us examine these
defining features.

1. Division of Powers: Division of powers is a defining feature of federal states. Power

is divided on two bases: territory and functions. Territorially, the power to govern is
divided into central/national and various constituent units, popularly known as
state/province or regional governments. Functionally, power is divided between
national and provincial governments. The division of power is done in three ways.
First, in the list system. Second, listing the powers of the central government and
giving the residual powers to the provinces/states. The third scheme lists the powers
of 201 Federalism-Canada, Australia, Canada and India both governments and gives
residuary powers to the Center. The concurrent list remains open to both national and
provincial governments.
2. Dual Government and Citizenship: As a result of territorial division of power and
creation or coming together of many constituent units, there are two government
levels in federal states: the provincial and national.
3. Supremacy of the Constitution: The Constitution is the cornerstone of a federal
state. It is the supreme law of the land that stipulates the territorial and functional
division of powers. The constitution is the source of powers and functions of both
provincial and national governments. It regulates the relations among provinces and
between provinces and the national government. It informs provinces and national
government about where their limits start and where the jurisdiction of others begin.
4. Written and Rigid Constitution: The rigidity of the Constitution is a defining
feature of federal states. A rigid constitution is a constitution that cannot be changed
unilaterally either by states or the centre. In other words, the powers and roles of
either constituents or the national government cannot be reduced or increased by
either of them alone. Written and Rigid Constitution is hard to amend.

The rigid constitution guarantees autonomy and prevents encroachment and

infringement of rights by one level of government against another level of
government.

5. Dispute Settlement Mechanism

When many provinces are close and have common things, they may have problems.
These problems can be of four types: between two provinces, among many provinces,
one province and the country, and provinces and the country.

In such a situation, the dispute settlement mechanism plays a pivotal role in sustaining
and strengthening federalism. In Canada, India and the USA, the Supreme Court
plays this role.

6. Bicameral Legislature:

The bicameral legislature is another defining feature of a federal state. The two
chambers of the national legislature are named differently in different states.
For instance, they are called the Chamber of Deputies and the Federal Senate in
Brazil, the House of Representative and Senate in the USA, and Lok Sabha and Rajya
Sabha in India.

The people directly elect the first chamber or the lower house. In federal states, the
upper house necessarily represents the provinces. However, the election process of the
second chamber or the upper house varies from country to country.
 A. FEDERALISM IN INDIA:
India adopted its constitution on 26th January 1950. Although the Indian Constitution
states that ―India that is Bharat shall be a union of states. (Article 1) and nowhere
mentions the word ‗federation‘ or ‘federalism’ Dr. B. R. Ambedkar asserted in 1948 that
the ―Draft Constitution could be both unitary as well as federal according to the
requirements of time and circumstances. In normal times, it is framed to work as a federal
system. However, in times of war, it is designed to make it work as a unitary system.
(quoted in Tillin 2019). The following characteristics of federalism can be identified in
the Indian constitution:

1. Division of Powers:

The scheme of division of powers in the Indian federation is presented in the Seventh
Schedule of the Constitution of India. The constitution has three lists for dividing the
powers between the centre and states, Union, State and Concurrent lists.

Article 246 of Indian constitution distributes legislative power between union and
states. It gives union exclusive power to legislate in respect of matters contained in
list 1 and concurrent power to legislate in respect of matters contained in list 3 of
schedule 7 of the constitution.

The Union list has 97 subjects over which the central government has exclusive
jurisdiction. The State list has 61 subjects. The Concurrent list initially had 47
subjects over which both the central and state can legislate. The Concurrent list has
been enlarged to 52 subjects, with the 42nd Amendment of 1976 transferring five
subjects from the State List to the Concurrent List which are Education Forests,
Weights & Measures, Protection of Wild Animals and Birds, Administration of
Justice.
 As in most constitutions, when there is a conflict between central and state
governments ‘laws, the centre’s law prevails over the state laws. The residual powers
rest with the Centre.

Parliament is given power to legislate on exclusively state subjects matters namely:

Article 249 of Indian constitution gives power to parliament with respect to matter
in the state list in the national interest.

Article 250 of Indian constitution gives power to parliament in respect of any

matter in the state list if a proclamation of emergency is in operation.

Article 252 of Indian constitution gives power to parliament to legislate two or

more states by consent of those states.

Article 352 and 353 states about provisions for the proclamation of emergency and
the effect of such proclamation.

There are provisions included in the constitution which are to be operative unless
parliament made any contrary provision or word to the same effect.

Article 368 of Indian constitution states about provisions regarding the amendment
of the constitution.

2. Dual Government:
In India, a central government and state governments exist, each having its political
institutions and processes. They have a separate legislature, executive, and judiciary.
The President is the head of the Union of India, while the Governor is the
constitutional head of state. If the Supreme Court is India‘s highest judiciary, the High
courts are the state‘s highest judiciary. Establishing a distinct set of political
institutions for central and state governments has resulted in establishing two tiers of
government in Indian Federation.

3. Dispute Settlement Mechanism:

The judiciary and inter-governmental bodies are two mechanisms in the Indian
federation to manage and resolve disputes between the centre and state or between the
 two states amicably. The Supreme Court is the ultimate arbitrator in matters of centre
vs state and state vs state.

4. Written and Rigid Constitution:

The Indian constitution adopted in 1950 had twenty-two chapters, 395 Articles and
eight schedules. It is the source of states and central government‘s powers and
authorities. The Indian constitution is a blend of rigidity and flexibility.

Article 368 Power of Parliament to amend the Constitution and procedure therefor

Any constitutional amendment affecting Centre-State relations such as the division of

powers and state’s representation in the Parliament requires a majority of the total
membership of the house and a majority of not less than two-thirds of the members of
the house present and voting. The amendment also requires to be ratified by fifty per
cent of state legislatures.

5. Bicameral Legislature:
Indian legislature known as Parliament is bicameral. The two chambers are Rajya
Sabha, the upper chamber and Lok Sabha, the lower chamber. In a bicameral
legislature, the Lok Sabha (People‘s Council) represents the people across the
country. In contrast, the Rajya Sabha (Council of States) represents the states in the
national legislature. Contrary to the Lok Sabha, whose members are directly elected
by the people, the members of the Rajya Sabha are elected by the state legislatures.
The President nominates twelve members to Rajya Sabha for their contributions
towards arts, literature, sciences, and social services.

6. Single Citizenship
Another thing which is against the pure form of federalism is there is concept of
single citizenship in India.

Case laws:
1. State of Rajasthan v Union of India, 1977
In State of Rajasthan v Union of India, 1977 former chief justice Beg, called the
constitution of India as “amphibian” he further stated that if our constitution
creates a central government which is amphibian in the sense that it can be either
 federal or unitary according to the need of the situation and the circumstance of the
case.

2. S.R. Bommai v Union of India

In this case the court stated that the president should exercise his powers only after
his proclamation is approved by both houses of parliament. The power of
president to dismiss a state government is not absolute.

3. Haryana v State of Punjab

In State of Haryana v State of Punjab the term semi-federal was used for India and
in Shamsher singh v State of Punjab the constitution was called more unitary than
federal.

4. State of West Bengal v Union of India

This case dealt with the issue of the exercise of sovereign powers by Indian states.
In this case, the Supreme Court held that the Indian constitution does not promote
a principle of absolute federalism. The court further states 4 characteristics
highlighting the facts that the Indian constitution is not a traditional federal
constitution.

1. The first characteristic is highlighted by the court is that constitution of India

is the supreme document which governs all states and there is no provision of
separate constitutions for each state as required in the federal state.

2. The second characteristic is highlighted by the court is that the states have no
power to alter the constitution but only central government has the power to
alter the constitution of India.

3. The third characteristic is highlighted by the court is that the Indian

constitution renders supreme power upon the courts to invalidate any action
which violates the constitution.

4. The fourth characteristic is highlighted by the court is that the distribution of

powers facilitates national policies matter by central government and local
governance by the state government.
 The Supreme Court further held that the central government is the final authority
for any issue. The political power is distributed between both union and state
governments with greater weight given to the union government.

The learned judges finally concluded that the structure of India as provided by the
constitution is centralized, with the states occupying a secondary position vis-à-vis
the Centre.

B. FEDERALISM IN CANADA:
The British North America Act, 1867, passed by the British Parliament, established a
Dominion of Canada as a self-governing part of the British Empire. It introduced
federalism in Canada by bringing together the Provinces of Upper and Lower Canada,
Nova Scotia, and New Brunswick together in one federal union. Other provinces joined
the Dominion later. TheCanadian federation comprises four regions: Ontario, Western
Provinces, Quebec, and the Maritime Provinces. In addition to regions, North-west
territories and Yukonare also parts of Canadian federalism.

1. Written and Rigid Constitution:

The Constitution Act, 1867, also known as British North America Act, 1867, passed by
the British Parliament, introduced a parliamentary form of government with a federal
system in Canada. The amendment process of the Canadian constitution has evolved over
a period. The 1867 Act had no formula to amend the constitution. The Canadian
Parliament used to request the British Parliament to decide whether the amendment was
to be done. In 1949, the Canadian Parliament was given the power to amend some parts
of the constitution. According to the Canada Act, 1982, the Canadian constitution can be
amended in five ways (Pelletier 2017: 258-259).
First, provisions affecting the federal government can be amended by the federal
Parliament;
Second, provinces have exclusive power to amend the constitution of the province;
Third, few amendments also require the approval of two-thirds of provinces, containing
the majority of the population. It is also referred to as the 7/50 procedure;
Section 41: Fourth, other amendments require the federal consent and the approval of all
states
Fifth, Parliament‘s amendment affecting only one or more, but not all states, requires
approval from the concerned state only. The amendment process of the Canadian
constitution affecting federal structure can be regarded as rigid.

2. Bicameral Legislature:
Canada‘s federal legislature called Parliament is bicameral. It consists of the Queen
and two chambers, namely the Senate (the upper chamber) and the House of
Commons (the lower chamber).

The Senate represents the provinces. Initially, the Senate had 71 members. However,
presently it has 104 members. The membership can be expanded up to 118. Out of
104, four regions of the Canadian federation, namely Ontario, Western Provinces,
Quebec and the Maritime Provinces, send twenty-four representatives each to the
Senate (Kapur and Mishra 2018: 441). Two Senators represent each of the North-west
Territories and Yukon. As per the Constitution of 1867, the House of Commons was a
181 membered chamber. Nevertheless, now the membership of the house has been
extended up to 282.

3. Division of Powers:
There is an explicit system of division of power in Canada. The Constitution Act,
1867, is the primary source of the division of powers in the Canadian federation.
Under sections 91 and 92(10) of the Constitution, the federal government has the
power to make laws on items of national ‘ interest such as national defence, foreign
affairs, employment insurance, banking, federal taxes, the post offices, fisheries,
shipping, railways, telephones and pipelines, Indigenous lands and rights, and
criminal law.
Under sections 91 and 92(10) of the Constitution, the federal government has the
power to make laws on items of national ‘ interest such as national defence, foreign
affairs, employment insurance, banking, federal taxes, the post offices, fisheries,
shipping, railways, telephones and pipelines, Indigenous lands and rights, and
criminal law.
 Under sections 91 and 92(10) of the Constitution, the federal government has the
power to make laws on items of national ‘ interest such as national defence, foreign
affairs, employment insurance, banking, federal taxes, the post offices, fisheries,
shipping, railways, telephones and pipelines, Indigenous lands and rights, and
criminal law.
The residual powers rest with the federal Parliament. It implies that powers not listed
in the province list will go to the federal Parliament.
4. Dispute Settlement Mechanism:
Before 1949, the power to interpret the Constitution was vested with the Judicial
Committee of the Privy Council. Since then, the interpretive power has been handed
over to the Supreme Court of Canada.
The Supreme Court seems to favour the strong federal government.

5. Two Tiers of Government:

Like other federal states, Canada has two levels of government called federal and
provincial. The Lieutenant-Governor acts as Crown‘s representative. If Prime
Minister functions as the head of the government at the federal level, the Premiers
exercise the executive powers at the province level.
In provinces, there also exists a cabinet and ministers. Like the federal government,
states have their legislature, executive and judiciary. Initially, the legislature of the
four provinces was bicameral. At present, they are single-chambered and elected by
people. The size of the provincial legislature varies as Prince Edward Island has only
twenty-seven membered legislature while Quebec has 125 membered legislature.

Case laws:
Hodge v The Queen (1883):
This case established that provincial governments have exclusive jurisdiction over
property and civil rights within their provinces, as long as they do not conflict with
federal laws. This case also recognized that provincial governments have inherent
powers to legislate for the peace, order, and good government of their provinces.

Reference re Senate Reform (2014):

This case dealt with the question of whether the federal government could reform or
abolish the Senate without consulting or obtaining the consent of the provinces. The
 Supreme Court ruled that any significant change to the Senate’s role, composition, or
method of selection would require a constitutional amendment with the approval of at
least seven provinces representing at least 50% of the population. The Supreme Court
also ruled that abolishing the Senate would require an unanimous consent of all
provinces.

Reference re Greenhouse Gas Pollution Pricing Act (2021):

This case concerned the validity of the federal law that imposed a minimum national
standard for carbon pricing to reduce greenhouse gas emissions. The Supreme Court
ruled that the law was constitutional under the federal government’s power to make
laws for the peace, order, and good government of Canada.

C. FEDERALISM IN AUSTRALIA
Australian federalism came into existence on 1st January 1901, with six British colonies
as its constituents. In Australian federalism, the province is called ‘state’, while the
national government is known as the ‘Commonwealth of Australia’. Following are the
noticeable features of Australian federalism:

1. Written and Rigid Constitution:

The constitution of the Australian is the source of authority of both the
Commonwealth and states powers. That is, both the Commonwealth and states derive
their powers directly from the constitution. Australian constitution is also a rigid
constitution. The constitutional amendment requires the majority of voters‘ support at
the national level in a referendum and the majority of voters' support at least four out
of the six states.
As a consequence of the complex amendment procedure, only eight out of thirty-six
proposed constitutional amendments could be passed in the referendum till now. The
rigidity of the constitution provides a de facto guarantee to states and the
Commonwealth that their respective rights cannot be violated unilaterally.
2. Division of power:
The division of powers in Australian federalism is explicitly mentioned in the
constitution. Section 51 of the Australian Constitution states that the jurisdiction to
make law on the listed issues rests with the Australian Commonwealth.
Forty subjects have been listed or reserved for the Commonwealth. These include
defence and external affairs; overseas trade and commerce; immigration; trade;
currency, and social functions such as marriage and matrimonial causes. The rest or
unlisted subjects, formally known as residual powers, rest with the states. The states
have exclusive rights to make laws on the residual subjects. In addition to the listed
and residual powers, the concurrent list identifies subjects over which both the
Commonwealth and states can legislate. However, in case of inconsistency between
the Commonwealth and state laws, the Commonwealth laws will prevail over the state
laws.

3. Bicameral Legislature:
Australian Parliament is made of the Crown and two chambers, namely, the Senate
and the House of Representatives. The Senate is made of 76 senators, while the House
of Representatives has 151 members.
The states are represented in the Senate. For representation in the Senate, the principle
of equality is followed. Each state, irrespective of its population and territory size, has
been allotted equal twelve seats in the Senate.
The mainland territories- the Australian Capital Territory and the Northern Territory-
send two senators each. Of the twelve members elected from every state through the
proportional representation system for six years. The 151 members of the House of
Representatives are elected for three years terms by the preferential voting system.
4. Dispute Settlement Mechanism:
In the Australian federal system, the Courts and inter-governmental bodies play
significant roles in resolving disputes between the states and national government or
between states.
The High Court is the highest court in Australia. It has played an essential role in
sustaining federalism for over a century.
According to Section 77 of the Australian Constitution, the final court of appeal is in
dispute between federal and state jurisdiction. It has the authority to interpret the
Constitution.

Case laws:
The Engineers Case (1920):
This case established that the federal government has exclusive jurisdiction over
matters that are expressly granted to it by the Constitution, and that there are no
implied limitations or immunities that protect the provincial governments from federal
laws. This case also recognized that the federal government has inherent powers to
legislate for the peace, order, and good government of Australia.

The Tasmanian Dams Case (1983):

This case confirmed that the federal government can use its external affairs power to
implement international treaties and agreements, even if they affect matters that are
normally within the jurisdiction of the provincial governments. This case also held
that the federal government can override provincial laws that are inconsistent with its
laws under section 109 of the Constitution.

The Uniform Tax Case (1942):

This case upheld the validity of the federal government’s monopoly over income tax
during World War II, which effectively reduced the financial autonomy and power of
the provincial governments. This case also affirmed that the federal government can
use its power to grant financial assistance to the provinces on any terms and
conditions it sees fit.
 D. FEDERALISM IN USA
1. Written and Rigid Constitution:
U.S. Constitution was came on 17th September, 1787 but it came into operation in
1789 after ratification by 9 countries. The first Congress under the new constitution
proposed twelve amendments in 1789, and ten of them were ratified by the states in
1791. These ten amendments are known as the Bill of Rights, and they guarantee
various freedoms and rights to the people, such as freedom of speech, religion, press,
assembly, petition, trial by jury, and so on.
The US Constitution is written and rigid because it is based on the idea that the people
have given their consent to be governed by a set of rules that they have agreed upon.
The constitution is written in a single document that contains the basic principles and
structures of the government, as well as the rights and duties of the citizens. The
constitution is rigid because it can only be changed by a special process that requires
the approval of a supermajority of both the federal and state governments. This makes
it difficult to amend the constitution and ensures that it reflects the will of the people
and protects their liberties.
So far since 1789 there were only 27 amendments have been made to the U.S.
Constitution.
2. Supremacy of the Constitution:
Article VI Clause 2
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the Authority
of the United States, shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.
3. Division of power:
In the U.S. there is equal distribution of powers is seen as per the U.S. Constitution
we can see this in the following articles of the Constitution.
The Commerce Clause, Article 1, Section 8
The Commerce Clause is a provision of the U.S. Constitution that gives Congress the
power to regulate commerce with foreign nations, among the states, and with the
Indian tribes. It is found in Article I, Section 8, Clause 3 of the Constitution, which
reads as follows:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,
to pay the Debts and provide for the common Defence and general Welfare of the
United States; but all Duties, Imposts and Excises shall be uniform throughout the
United States;

Article IV section 3, Admission of new sates

New States may be admitted by the Congress into this Union; but no new State shall
be formed or erected within the Jurisdiction of any other State; nor any State be
formed by the Junction of two or more States, or Parts of States, without the Consent
of the Legislatures of the States concerned as well as of the Congress.
In other words it grants Congress the power to regulate commerce with foreign
nations, among the several states, and with the Indian tribes

Article IV section 4, Republican form of government

The United States shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on Application of
the Legislature, or of the Executive (when the Legislature cannot be convened)
against domestic Violence.
 Xth Amendment
The Tenth Amendment, which provides that the powers not delegated to the United
States by the Constitution, nor prohibited by it to the states, are reserved to the states
respectively, or to the people.

4. Bicameral Legislature:
Article I Section 3: Clause 1 Composition
The Senate of the United States shall be composed of two Senators from each State,
chosen by the Legislature thereof, for six Years; and each Senator shall have one
Vote.
A bicameral legislature is a type of lawmaking body that has two chambers or houses.
The U.S. Constitution establishes a bicameral legislature for the federal government,
called the Congress, which consists of the Senate and the House of Representatives.
The Constitution also specifies how the members of each chamber are elected, how
long they serve, and what powers they have.
The main reason why the Framers of the Constitution chose a bicameral legislature
was to balance the interests of different groups and regions in the country. They
wanted to create a system that would prevent any one branch or level of government
from becoming too powerful or oppressive. They also wanted to ensure that the laws
passed by the Congress would reflect the will and consent of the people.

Case laws
McCulloch v Maryland (1819):
In this case, the U.S. Supreme Court said that the Elastic Clause gave the Federal
Government the implicit authority to create banks. Moreover, the court also stated in
this case that the “Supremacy Clause” implicitly exempted the Federal Government
from state taxes.

Gibbon v Ogden (1824):

The U.S. Supreme Court said that only Congress had the power, under the Commerce
Clause, to regulate interstate commerce. The Supremacy Clause gave the Federal
Government the power to pre-empt the states in all policies involving interstate
commerce.
 E. FEDERALISM IN SWITZERLAND

Article I of the 1874 Swiss Constitution described Switzerland as a confederation. But in

reality, it was a federation with 23 Cantons (20 full and 6 half Cantons) constituting the
Federation. Now the newly revised constitution (2000) of Switzerland directly describes it as
the Swiss Federation. “The Swiss confederation came into being to consolidate the alliance of
the Confederated members and to maintain and increase the unity, strength and honour of the
Swiss nation.”

1. Distribution of powers

Two fundamental principles govern the distribution of powers between the

Confederation and the cantons. One is the "Kompetenz Kompetenz" of the
Confederation, which is a basic principle of any federal state. In the context of this
competence, the Confederation can, by means of change to the Constitution (in
Switzerland only with the agreement of a majority of the people and of the cantons),
itself determine which tasks are allocated to it.
 The second fundamental principle is contained in the old and the new Art. 3, which,
on account of its importance, is often referred to as the basic federal norm of
Switzerland. It states: "The Cantons are sovereign insofar as their sovereignty is not
limited by the Federal Constitution; they shall exercise all rights which are not
transferred to the Confederation." Retention of this article was one of the main
concerns of the cantons during the formulation of the new Constitution.

All in all, one can, in consequence, certainly say that our Constitution, through the
distribution of powers that I have just sketched, gives the cantons a strong position.
The weaknesses of Swiss federalism spring from the widely differing size and, above
all, financial strength of the cantons. Apart from material reasons, it was mainly
financial reasons which over and over again led to the transfer of tasks from the
cantons to the confederation

"The confederation shall assume the tasks which require uniform regulation and the
Confederation shall leave the Cantons as large a space of action as possible, and shall
take their particularities into account." (Article 42,46)

The division of powers in the Swiss Constitution follows the pattern of the US
federation. The powers of the Federation and the joint powers of the Federation and
the Cantons have been laid down in the Constitution, and the residuary powers have
been left with the Cantons. (v) The federation has been given powers in respect of
subjects of national importance and the Cantons have retained powers in respect of
local and regional subjects.

The Cantons have been given equality of representation in the Upper House of the
Swiss Federal Parliament- the Senate, Each full Canton, whether big or small, sends
two representatives and each half-Canton one representative to the Senate.

Non-sovereign status of Cantons.

2. Written and rigid constitution

 The Swiss constitution of 1848 as amended in 1874 and in subsequent years, and
integrated in 1999 is a written document like that of the U.S.A. although it is double
in size to that of the American constitution. The 1999 Constitution consists of One
Hundred and Ninety Six Articles.

This Swiss Constitution is rigid in character, though not so rigid as the American
constitution. The procedure of its amendment is rather complicated. There are two
methods of amending it.

i. Through referendum

If both the Houses of the federal Parliament agree by passing a resolution to revise the
Constitution, either, wholly or partially, they may draft such a proposal and submit it
to the vote of the people and Cantons. If a majority of the citizens voting at
Referendum and a majority of the Cantons approve of it, the amendment is made in
the Constitution. In case, only one House agrees to the proposed revision and other
does not, then the proposed revision is referred to the people’s vote to ascertain
whether the proposed revision is necessary or not. If the people approve the proposed
revision by a majority vote, Federal Assembly stands dissolved. The newly elected
assembly takes up the proposed revision. If both the Houses of the Assembly ratify it,
which is a foregone conclusion, the revision is submitted to the people and Cantons
for vote. If the majority of the people and Cantons approve of it, the revision is
effected.

ii. Through Constitutional Initiative

A complete or partial revision of the Constitution can also be effected through popular
Initiative, on the petition of at least, one lakh Swiss citizens.

3. Supremacy of Swiss Constitution

The supremacy of the Swiss constitution means that it is the highest law in the country
and that all other laws and acts of the federal, cantonal, and communal governments must
conform to it. The constitution also establishes the basic principles and values of the
Swiss political system, such as democracy, federalism, rule of law, and human rights.

Article 49 of the Swiss constitution states the following:

Federal law shall take precedence over any conflicting provision of cantonal law.

The Confederation shall respect cantonal autonomy.

The Cantons shall respect the rights of the Confederation and other Cantons.

This article implies that:

 The federal parliament has the power to make laws on matters that are assigned to
it by the constitution, and that these laws are binding for all the cantons and their
citizens.
 The federal government and courts have the duty to ensure that the federal laws
are respected and enforced throughout the country, and that they can invalidate or
override any cantonal laws that are inconsistent with them.
 The cantons have the power to make laws on matters that are not assigned to the
federal government by the constitution, and that these laws are valid within their
own territories, as long as they do not conflict with the federal laws or
constitution.
 The cantons have a degree of autonomy and self-government in managing their
own affairs, and that the federal government should not interfere with their
legitimate interests or decisions, unless it is necessary to protect the national
interest or unity.
 The cantons have to cooperate with each other and with the federal government in
fulfilling their constitutional obligations and duties, and that they have to respect
the rights and interests of other cantons and their citizens.

4. Dual citizenship
 The Cantons have their separate constitutions. There is dual citizenship, dual
administration and a dual system of courts.

The system of double citizenship prevails in Switzerland. The Constitution states that
every citizen of a Canton shall be a citizen of Switzerland. This entitles a person to enjoy
the citizenship of his Canton as well as that of the Swiss Federation.

Article 37: This article defines a Swiss citizen as someone who has the citizenship of a
Swiss municipality, a canton, and the Confederation. It also states that the Confederation
and the cantons shall regulate the acquisition and loss of Swiss citizenship by law1.

5. Independent Judiciary

The Swiss Federal Court is an independent judiciary with the power of judicial review
over the legislation passed by Cantonal legislatures.

6. Bicameral Legislature

Swiss Federal Parliaments is a bicameral body. Its two houses are: The House of
Representatives and the Senate. The former is the lower, popular, national house which
represents the people of Switzerland and the latter is the upper house which represents the
Cantons and their sovereign equality. Each full Canton two and each half Canton has one
seat in the Senate. The House of Representatives has tenure of 4 years whereas the
tenures of the members of the Senate depend upon the Cantons which they represent. In
fact the members of the upper house are not elected simultaneously. The Federal
Parliament enjoys legislative, executive, financial and judicial powers which are jointly
exercised by the two Houses. Both the Houses have equal powers in all spheres. In the
words of C.F. Strong, “The Swiss legislature like the Swiss executive is unique. It is the
only legislature in the world, the powers of whose upper house are in no way different
from those of the lower house.”

Case laws:
The Jura Case (1974-1979):

This case involved the question of whether the French-speaking region of Jura could secede
from the German-speaking canton of Bern and form a new canton. The Federal Supreme
Court ruled that the right to self-determination of the people of Jura had to be respected and
that a series of referendums had to be held to determine the will of the population. As a result,
the canton of Jura was created in 1979, after four referendums.

The Lex Friedrich Case (1995):

This case concerned the validity of a federal law that restricted the acquisition of real estate
by foreigners in Switzerland. The Federal Supreme Court upheld the law as constitutional,
based on the federal government’s power to regulate foreign relations and economic
policy. The court also rejected the argument that the law violated the principle of equality
between Swiss citizens and foreigners, or between cantons with different levels of foreign
ownership.