FEDERALISM:

Federalism is compound mode of two governments. This is similar to Canadian

model of political organization. Federalism is derived from the Latin world foedus, which
means agreement. The word Federation is an agreement between two types of government sharing
power and controlling their respective spheres. Thus a federation is a system of national and local
governments, combined under a common sovereignty with both the national as well as federating
units having autonomous spheres assigned to them by the constitution . It is further pertinent to
notethat Federations are never born, they are always created. Federal governments are limited
governments, limited vertically because powers are shared between the national government and
the federating units,They limited horizontally because the powers, at both national and units levels
are shared among the three branches of the government: legislature, executive and judiciary.

Federalism, thus is a method of dividing powers so that the central and regional governments are
each within a sphere, co-ordinate and independent.

According to Birch, “A federal system of government is one in which there is a division of powers
between one general and several regional authorities each of which, in its own sphere is coordinate
with the others, and each of which acts directly on the people through its own administrative
agencies’’

Critics argue that federalism falls short in two ways:

 Prevents The Creation Of A National Policy: The United States does not have
a single policy on issues; instead, it has fifty-one policies, which often leads to
confusion.
 Leads To A Lack Of Accountability: The overlap of the boundaries among
national and state governments makes it tricky to assign blame for failed policies.
Citizen Ignorance
Critics argue that federalism cannot function well due to ignorance. Most Americans know
little about their state and local governments, and turnout in state and local elections is often
less than 25 percent. Citizens consequently often ignore state and local governments, even
though these governments have a lot of power to affect people’s lives.
Federalism can be simply defined as a form of government where there is
interdependence of central government at the national level with its constituent
units at the regional, state, or local levels. Etymologically, Foedus is the root
Latin term from which the term Federalism is derived, which means a formal
agreement or covenant or a treaty. It basically means sharing of decision
making authority and devolution of power between the national and local
governmental units, such that each unit is delegated a sphere of power and
authority only it can exercise, while other powers must be shared.  

K. C. Wheare, an authority on federalism says that, “In a federal constitution

the powers of government are divided between a government for the whole
country and governments for parts of the country in such a way that each
government is legally independent within its own sphere.”  

Features of Indian Federalism

The best way to comprehensively understand the federal system is to learn

about its features. These characteristics combined to reflect the true essence of
federalism.

 Written Constitution: The Indian Constitution is a written document

containing, at present, 448 Articles and 12 schedules, and therefore, fulfils
this basic requirement of a federal government. In fact, the Indian
Constitution is the most elaborate Constitution of the world.

 Supremacy of the Constitution: India’s Constitution is also supreme and

not the hand-made of either the Centre or of the States. If for any reason any
organ of the State dares to violate any provision of the Constitution, the
courts of laws are there to ensure that dignity of the Constitution is upheld at
all costs.

 Rigid Constitution: The Indian Constitution is largely a rigid Constitution.

All the provisions of the Constitution concerning Union-State relations can
be amended only by the joint actions of the State Legislatures and the Union
Parliament. Such provisions can be amended only if the amendment is
passed by a two-thirds majority of the members present and voting in the
 Parliament (which must also constitute the absolute majority of the total
membership) and ratified by at least one-half of the States.

 Division of Powers: In a federation, there should be clear division of powers

so that the units and the centre are required to enact and legislate within their
sphere of activity and none violates its limits and tries to encroach upon the
functions of others. This requisite is evident in the Indian Constitution. The
Seventh Schedule contains three Legislative Lists which enumerate subjects
of administration, viz., Union, State and Concurrent Legislative Lists. The
Union List consisted of 97 subjects, the more important of which are
defence, foreign affairs, railways, posts and telegraphs, currency, etc. The
State List consisted of 66 subjects, including, inter-alia public order, police,
administration of justice, public health, education, agriculture etc. The
Concurrent List embraced 47 subjects including criminal law, marriage,
divorce, bankruptcy, trade unions, electricity, economic and social planning,
etc.

The Union Government enjoys exclusive power to legislate on the subjects

mentioned in the Union List. The State Governments have full authority to
legislate on the subjects of the State List under normal circumstances. And both
the Centre and the State can legislate on the subjects mentioned in the
Concurrent List, the residuary powers have been vested in the Central
Government.

 Independent Judiciary: In India, the Constitution has provided for a

Supreme Court and every effort has been made to see that the judiciary in
India is independent and supreme. The Supreme Court of India can declare a
law as unconstitutional or ultra Vires, if it contravenes any provisions of the
Constitution. In order to ensure the impartiality of the judiciary, our judges
are not removable by the Executive and their salaries cannot be curtailed by
Parliament.

 Bicameral Legislature: A bicameral system is considered essential in a

federation because it is in the Upper House alone that the units can be given
equal representation. The Constitution of India also provides for a bicameral
Legislature at the Centre consisting of Lok Sabha and Rajya Sabha. While
the Lok Sabha consists of the elected representatives of people, the Rajya
Sabha mainly consists of representatives elected by the State Legislative
 Assemblies. However, all the States have not been given equal
representation in the Rajya Sabha.

 Dual Government Polity: In a federal State, there are two governments—

the national or federal government and the government of each component
unit. But in a unitary State there is only one government, namely the national
government. So, India, as a federal system, has a Central and State
Government.

To draw a parallel between systems of government, a federal polity involves a

dual system of government (national government and state government) as
compared to a unitary system where a single-central government is cardinal and
ultimate

      The term federalism refers to a formal legal relationship between one or

more levels of government vertically organized, and a whole host of
relationships between similar levels of government horizontally organized. 

On the basis of relations between the central government and the units, the
governments are classified as unitary and federal. In a unitary system of
government, all powers are vested in Centre while in a federal system; the
powers are divided between the centre and the states by the constitution. The
constitution of India provides a federal system even though it describes India
as union of states. The term union of states implies that states have no freedom
to recede from India. Indian Constitution is also called quasi-federal because it
has features of both federal and unitary types of governments. It has been called
a unique blend of unitary and federal features by the Supreme Court. The key
federal features are written constitution; concept of constitutional supremacy;
complex procedure of amendment of constitution in certain matters; an
independent judiciary; clear division of powers via 7th schedule; provision of
Rajya Sabha {it is a federal feature as states have been given representation in
this house} etc.

Unitary features include strong centre; absence of separate constitution of states,

right of parliament to amend major portions of constitution, unequal
representation in Rajya Sabha, states not given guarantee of territorial integrity,
single constitution; single citizenship; flexibility of constitution; integrated
judiciary; appointment of state governor by the centre; all India services and
emergency provisions, single election machinery for state / centre government
elections, CAG office which looks into the accounts of both states and union
etc.

In a Unitary state, units derive power from central legislature i.e. Union > Units.
In Confederation, it is an alliance between independent states where units can
secede i.e. Units > Union and when Union and Units are co-equal, it is a
federation with each unit being sovereign in its own sphere due to division of
legislative powers. Therefore, in federalism, unions and units are indestructible.

Judicial pronouncements

Over course of time, various judicial pronouncements have defined and

interpreted the term ‘Federalism’ in different light.

In Rajasthan v. Union of India[9]C.J. Beg said: “In a sense, therefore, the Indian
Union is federal. But, the extent of federalism in it is largely watered down by
the needs of progress and development of a country which has to be nationally
integrated, politically and economically coordinated, and socially, intellectually,
and spiritually uplifted.”

In S.R. Bommai & Ors. v. Union of India & Ors.,[15] a Constitution Bench
comprising 9 Judges of this Court considered the nature of federalism under the
Constitution of India. Justice A.M. Ahmadi, in Paragraph 23 of his Judgment
observed as under: ” the significant absence of the expressions like ‘federal’ or
‘federation’ in the constitutional vocabulary, Parliament’s powers under
Articles 2 and 3 elaborated earlier, the extraordinary powers conferred to meet
emergency situations, the residuary powers conferred by Article 248 read with
Entry 97 in List I of the VII Schedule on the Union, the power to amend the
Constitution, the power to issue directions to States, the concept of a single
citizenship, the setup of an integrated judiciary, etc., etc., have led constitutional
experts to doubt the appropriateness of the appellation ‘federal’ to the Indian
Constitution.

Comparision of federalism between U.S. and India

To decipher this issue, we can draw a parallel to our constitution by comparing

it with the ten yardsticks of Federalism as provided by Ivo D. Duchacek[17] and
comparing it with the Federalism in United States of America.
Yardstick one

Has the Central Authority exclusive control over diplomacy and defence as
befits a nation-state in its relations with other nation-states?

Generally, in a federation, Central government has the ultimate control over

major issues in foreign policy and conduct of peaceful or violent international
relations.

U.S.A.: The United States Constitution, for instance, prescribes under Article 1,

Section 10, Clause 3[18] of the U.S Constitution that the ultimate control of
defense and diplomacy is with Central Government.

India: Indian Constitution in its seventh schedule includes entries related to

diplomacy and defense, war and peace, treatise, the United Nations, pilgrimages
outside India, piracies and crimes committed on the high seas or in the air and
offences against international law in the Union list, which gives power to the
federal government.[19]List 1 of Schedule VII gives powers to the union
government that are exclusive to the union and states cannot interfere with
exercise of these powers. Apart from this, Article 53(2) vests the President with
the Supreme Command of the Defense Forces of the Union. Article 352, 353
and 355 also speak about the Union’s power during the times of national
emergency. Article 51, which speaks about the promotion of international peace
and security, is also provided under the Directive Principle of State Policy. The
existence of these powers under the Indian Constitution is more elaborate than
in the American Constitution. Thus the Indian Constitution answers the first of
the ten yardsticks of federalism more positively than the American Constitution.

Yardstick two

Is Federal Union constitutionally immune against dissolution by secession?

U.S.A.:Article 4, Section 3[20] of the U.S. Constitution clearly says that no new
states shall be formed or erected within the jurisdiction of any other state
without the consent of the legislatures of the states concerned as well as of the
Congress.[21] Further banking on Texas v. White[22], it was concluded that that
constitutional limitation is necessary to prevent concentration of power on either
National or State level. Chief Justice Salmon P. Chase commented that the
federal Constitution “in all its provisions looks to an indestructible Union,
composed of indestructible States.” Thus, it may be concluded that no state may
secede from the union from the U.S. Constitution.
India: The constitution of India declares that India, that is Bharat, shall be a
Union of States.[23]It empowers Parliament to admit into the Union, or establish,
new States on such terms and conditions as it thinks fit.[24] Further Parliament
can by law 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; increasing the area of any State; diminishing the area of any State;
altering the boundaries of any State; or altering the name of any State.[25]On a
conjoint reading of these Articles, it becomes clear that Parliament has the right
to form new States, alter the areas of existing States, or the name of any existing
State. Thus the Constitution permits changes in the territorial limits of the States
and does not guarantee their territorial integrity. Even names can be changed.
Under Article 2 it is left to the Parliament to determine the terms and conditions
on which it may admit any area into the Union or establish new States. In doing
so, it has not to seek the concurrence of the State whose area, boundary or name
is likely to be affected by the proposal. All that the proviso to Article 3 requires
is that in such cases the President shall refer the Bill to the legislatures of the
concerned States likely to be affected ‘to express their views’. Once the views
of the States are known, it is left to Parliament to decide ‘on the proposed
changes. The Parliament can, therefore, without the concurrence of the
concerned State or States change the boundaries of the State or increase or
diminish its area or change its name. These provisions show that in the matter of
Constitution of States, Parliament is paramount.

Yardstick three

Is the exercise of the Central Authority, as it reaches all citizens, directly

independent of the individual approval and resources of the component units?

2. Can union directly reach people and provide welfare without state’s
permission?

U.S.A.: The Congress shall have Power to lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common Defense and
general Welfare of the United States.[26]In 1913, the Sixteenth Amendment gave
the Congress the right to impose income taxes “without apportionment among
the several States, and without regard to any census or enumeration.”

India: In India, the Union Government is independent of the constituent units

and can levy direct taxes and enforce federal laws. The tax heads or bases have
been specifically mentioned in the Constitution itself, and divided between the
Union and the States. Along with the tax bases mentioned in Schedule VII,
Article 268 to 281 also speak about the tax sharing between them. Further, the
Union property is exempted from the state taxes[27] and vice versa.[28]Thus, the
Central authority is very much independent of the individual approval and
resources of the component units with regard to the financial as well as other
resources.

Yardstick four

Who has the ultimate control over amendments to the federal Constitution?

In dissecting the text of any constitution, this is the most steadfast and reliable
yardstick to identify the federal structure of the state.

U.S.A.:  Under Article 5 of the U.S. Constitution,

To propose amendments:

By Congress: 2/3rd of both the houses

By application of legislature: 2/3rd of several states

For ratification: 3/4th of several states

Exception:

1. No amendment shall affect the first and fourth clause in ninth section of the
first article;

2. No state shall be deprived of its equal suffrage in the Senate

India: Under the Indian Constitution the power and procedure for Amendments
have been provided under Article 4, Schedule VI and principally under Article
368 of the Constitution. The power to initiate the amendments is vested with the
union in all the cases. There is no need for the ratification by the states for all
amendments. However, Article 368(2) identifies certain types of Amendments,
which essentially need the ratification by at least half of the states. The
Amendments, which need such ratification by at least half of the states, are
provided under Article 368 (2) (a) to (e). Thus, it is clear that when
Amendments are likely to be affecting the federal structure to some extent,
ratification by not less than half of the States is necessary.

Yardstick five
Are the component units immune to elimination of their identity [antedating or
postdating the Union] and authority?

U.S.A.: As discussed earlier, article 4, section 3 read with case of Texas v.

White, the states cannot be destroyed, their boundaries cannot be altered and not
even their names.

India: When India emerged as an independent State, it had nine fully

autonomous states, eight less autonomous states, ten minor states, called Part A,
B and C States respectively and federally administered territories called Union
territories. The Reorganization of States has made this possible in 1965 mainly
on linguistic considerations. Thus the power to alter the boundaries of the States
under Indian Constitution do enjoy some “real powers” in all matters listed in
List II as well or change the name of the existing ones is given to the Union
Parliament. Although the power for the total elimination of a State’s identity is
available with Parliament under Article 3(a) of the Constitution of India, it has
not taken place so far.

Yardstick six

Have the component units retained all the powers that the constitution has not
given to the central authority? And are these retained powers significant or
marginal?

U.S.A: Article 1, Section 8 of U.S Constitution provides for 18 subject matters

for the center to legislate upon and is restricted. The remaining power is with
the States. Thus residuary power is with states.

India: In India, exhaustive lists are prepared which chalks out the various areas
of the Centre and States. There never arose any question of residuary power.
But then too, if any entry is not mentioned in any of the three lists, then the
Centre has the authority over it. Thus residuary power is with Centre.

Yardstick seven

Is the collective sharing in federal rule making adequately secured by equal

representation of unequal units in a bicameral system? What are the
constitutional provisions for collective sharing in the executive and judiciary
rule implementation?
U.S.A.: Often viewed by Americans as an essential yardstick of federalism is
the Connecticut compromise, by which the American founders agreed on a
proportional representation of unequal states in the lower house and an equal
representation of unequal states (two senators per state) in the upper house. The
United States bicameralism is a true and full one because both houses are equal
in matters of legislation: no law can be enacted unless both houses agree on the
same text.[29]

India: In India, collective sharing in federal rule making is secured by unequal

representation of unequal units in the bicameral system. The allocation of seats
to the States in the Council of States in the Parliament is provided under
Schedule IV of the constitution. Apart from this, twelve members are nominated
by the President to the Council of States. This takes the total strength of Rajya
Sabha to 250.

Yardstick eight

Are there two independent set of courts, one interpreting and adjudicating the
federal laws and the other the state laws?

U.S.A.: The U.S. Supreme Court has jurisdiction over the entire country but
only in case of Federal Laws. The States have their own Constitutions and their
individual Supreme Court to interpret their own laws.

India: There is only one hierarchy of courts with the Supreme Court at the apex
and High Courts of individual States at the lower level. These two have the
power to adjudicate both; Federal as well as State laws.

Yardstick nine

Is there a judicial authority in the central authority but standing above the
central authority and the components units to determine their respective rights?

U.S.A: Yes, there is this concept of judicial review where the Supreme Court
has jurisdiction to try center-state dispute. Mculloh v. Maryland[30]is the classic
case of center state dispute, where judicial review was used.

India: According to Article 131, the Supreme Court of India has original

jurisdiction to try center- state dispute. Moreover, judicial review is a basic
feature of Indian Constitution provide in Article 13(2) read with 14, 32, 226. [31]

Yardstick ten
Is the territorial division of authority clear and unambiguous?

U.S.A: Reading this with the above discussed, clearly the working areas of both
center and state has been clearly defined. Even if some confusion remains, the
final authority is with center.

India: Exhaustive three lists are given under Article 246. Thus, there is clear
demarcation of authority. Though a question arise, whether state can make a law
which will have effect over union, answer to this question is yes, but there
should be territorial nexus, that is subject should be real, not illusory, subject
must be concerned with the object. But there are very few instances, which
came up before the court regarding conflict of lists; this makes it clear that there
is no ambiguity prevailing in India.

Conclusion

The Indian Constitution is impressed with three major loyalties. They all
indicate that the structure was intended to be Federal or Quasi – Federal. The
first loyalty of the Indian Constitution is to the Government of India Act, 1935
that provides its flesh, blood and a good part of its spirit. The second loyalty is
to the American Constitution, which gives it widespread judicial review of laws
and governmental actions, fundamental rights guaranteed by the constitution.
The third loyalty owed is to the British Constitution. Pattern of Indian
Parliament and State Legislatures is from the British model. Despite its diverse
hues, federalism essentially involves the devolution of power and sharing of the
decision-making authority. The format in U.S. can be classified as ‘bottom up’
model, where sovereign pre-existing units cede power to form a union, and
India as ‘top down’ model, with a strong unitary focus and provincial units,
‘confederations’ within a loose union. Federalism is a vehicle for managing
diversities, multiplicities and pluralities. As such, there can be no truly federal
state. It all depends upon the time and different national environments. And
because of such diverse culture in every nation, it is difficult to decode it on
specific yardsticks of federalism. To articulately put it, it was enunciated by
Justice P. B. Mukerjee in 1967 in his book ‘The Critical Problems of the Indian
Constitution’[32]: The future of India and her Constitution will depend on how
the nation evolves the principles and practice of federalism suited to India
whose indispensible requisite has to be unity in diversity, integrity with variety,
marked by the wisdom and experience of creating a harmony between the
centrifugal and centripetal forces within this sub-continent.
COMPARING THE MODEL OF FEDERALISM IN INDIA AND U.S.

The Traditional approach towards identifying the federal character of the

Constitution1

1. Dual polity

2. Distribution of powers

3. Supremacy of the Constitution

4. A Written Constitution

5. Rigidity

But Ivo D. Duchacek approached the federalism in a different manner by raising

certain questions based on classical model constitution of America. He provided
10 yardsticks for testing the federal character of the Constitution

1. Has the central authority exclusive control over diplomacy and defense as
befits nation-states in relations with other nation –states?

 In India Article 246 read with schedule VII – various entries-

1,2,4,10,11,13,14,15 directly provides for the exclusive control of the
central authority

 Besides these direct provisions there are other Entries like

5,6,7,9,12,16,17,18,19,37 and 41 of the List I support the union in this
matters

 Articles 53(2),352,353 and 355 further strengthen this power of central

authority

2. Is the Federal Union Constitutionally immune against dissolution by

secession?

 Under US Constitutions there is no chance to have secession

 Texas v White2- the US Supreme Court held that US is an indestructible

Union of indestructible States

 In India the Constitution in Article 1 says India that is Bharat shall be a

Union of States
1
Comparative constitutional law- Tom Ginsburg and Rosalind Dixon
2
74 U.S. 700 (1869)
  Territories of the State are Specified in Schedule I

 Article2 parliament is having the power to admit and establish new

states, Parliament can alter the boundaries of States or name of existing
States

 Article 352 and 356 can be used to prevent any secessionist tendency

3. Is the exercise of the central authority as it reaches all citizens directly

independent of the individual approval and resources of the component units?

 US Constitution in Article 1 section 8 gave powers to Congress to lay and

collect taxes, duties, imposts and excise

 Indian Constitution provides power in favor of Central Govt. to levy

direct taxes

 Subjects in schedule VII and Articles 268-281

 In Finance resources Central Authority is powerful

4. Who has Ultimate Control over the Amendments to the federal Constitutions?

 In US Article V provides the manner in which amendments can be made

to the Constitution

 Any amendments to US Constitution requires the ratification by 3/4th

States

 In India under Article 368 there is no requirement of ratification by the

States for all Constitutional Amendments

 Articles 368(2) provides that only for the Amendment of Articles

54,55,73,162,241 and 7th Schedule the assent of the States are required.

5. Are the Component Units immune to elimination of their identity and

authority?

 All 50 States of America is having the immunity- States are

indestructible Units, having separate Constitution

 In India the position is different , territories of the State are Specified in

Schedule I
  Under Article2 parliament is having the power to admit and establish
new states

 Under Article 3 (a) Parliament can alter the boundaries of States or name
of existing States

 In India union can change the identity of the State

6. Is the Collective Sharing in federal rule making adequately secured by equal

representation of unequal units in a bicameral system?

 In US every State is equally represented in the Senate

 Every state can send two representatives to the Senate

 In India there is no equal sharing in the federal rule making

 Allocation of seats in Rajya Sabha ( Council of States) is provided in

Schedule IV read with Article 80(2)

8. Is there a judicial authority in the central authority but Standing above that
Central Authority and the Components Units to determine their respective
rights?

 In US the supreme court stands above the central authority and the
component units

 The rights of the units can be determined by the SC in the event of

conflict between the federal and the state government or among the states,
this fall within the original jurisdiction of SC

 In India Judicial Review is explicitly provided under Article 13(2) with

14,32,226

 Article 131 speaks about original jurisdiction of SC in any intra-federal

dispute, the dispute between Govt of India and one or more states, or
between two or more states

9. Have the component units retain all the powers that the constitution has not
given to the central authority?

 Article 1 section 8 of US constitution mentions 18 subject matters on

which the federal government can legislate
  The residuary powers are with the component units

 In India residuary power is with the Central Government

 Only in limited specified matters State Govts have the law making power

10. Is the territorial division of authority is clear and unambiguous?

 Yes , the territorial division of authority is clear in India

 US. Article 1. section 8 provides 18 subject matters and residuary power

with states

 In India constitutional makers provided schedule 7 and 3 lists which

clearly provides powers between Union and States and thereby ensures
that clarity can be provided and conflicts can be avoided.

While framing the Indian constitution, its drafting committee headed by Dr.
Ambedkar, had borrowed many salient features from various constitutions in
the world including US but adopted them in the Indian context. Hence, both U.S
and India, despite being federal in structure have many similarities and
differences between them.

Similarities between US and India:-

1) Written constitution:-

Both US and India have a written constitution based on which the federal
political structure has been set up and both federal governments are functioning.
Both constitutions have provisions for amending the constitution to meet the
growing socio, political and economic needs and demands of their respective
countries.

2) Bill of Rights and Fundamental Rights:-

The US constitution has ensured the fundamental rights of its citizens like right
to equality, freedom, right against exploitation, freedom of religion, cultural and
educational rights, right to property, and right to constitutional remedies etc
through ‘The Bill of Rights’,. They became part and parcel of the US
constitution through first ten amendments that were carried out and adopted into
the US constitution. The Indian constitution has guaranteed the fundamental
rights of the people through articles 14 to 34 in Part III.
3) Supremacy of the Federal or Union Government:-

Both countries have federal governments at the centre in which various states
have acceded to. In the US as many as 50 states have joined the federal
government and in the Indian Union as many as 29 states and 8 Union territories
have acceded to. Both in US and India, states which have acceded to the Federal
set up have no unilateral power to secede from the Federal Government or the
Union Government. While Federal Government or the Union Government as
well as the states are empowered to enact laws on a particular subject,(known as
concurrent powers),the law enacted by the Federal or Union Government will
have overriding effect over the law enacted by the states on the same subject.
Thus Federal or Union Government is supreme in the present federal structure.

4) Division of Labour and Separation of Powers:-

Adhering to Montesquieu's theory of division of labour and separation of

powers, both US and Indian constitutions have three basic divisions with regard
to division of labour and power in their federal set up known as executive,
legislature and judiciary with clear cut ‘Separation of Powers’ Each division has
been entrusted with a separate power. The executive governs the country, the
legislature enacts laws and the judiciary administers justice. President of US is
the chief executive head of US, whereas the Union cabinet headed by the Prime
Minister is the real chief executive body in India. Both US and India have a
bicameral legislature. US legislature has an upper and lower house known as the
House of Senate and the House of Representatives respectively and the Indian
Parliament has Lok Sabha and Rajya Sabha as its Lower and Upper house
respectively. Both US and India have a well organized judiciary, having the
Supreme Court or the Federal Court as the apex court and a number of other
courts in various states to administer original and appellate jurisdictions.

5) Powers of Checks and Balances:-

Though there exists a clear cut division of labor known as separation of powers
into executive, legislature and judiciary in both countries, still there is a threat.
to democracy. A strong and dynamic leadership at the helm of powers as the
executive and acting with unlimited powers may lead to arbitrariness. After all
power corrupts power; absolute power corrupts absolutely; in the result
democracy may become a laughing stock and virtually unworkable. Hence, in
order to prevent unwieldy growth of any one of these three divisions, a fantastic
mechanism known as powers of ‘checks and balances’ has been maintained in
both countries. In other words, each division of power is somehow or other
checked and controlled by other divisions of power.

In the US, the President as the chief executive power appoints his members of
‘Kitchen Cabinet’ and he is the Supreme Commander-in-Chief of Army, Navy
and the Air Force. He appoints the Chief Justice of the Supreme Court of the
US. He enters into treaties with other countries. However, his treaties must be
approved by the House of Senate. Otherwise, the treaty will not come into force.
Though President Woodrow Wilson was the chief architect of the League of
Nations that came into being after the first world war, US could not become a
member of it since the House of Senate did not approve it. Thus important
policy decisions must be necessarily approved by the House of Senate, which
definitely acts as a check on the powers of US President, who is the head of the
executive. Similarly laws enacted by both houses may be subjected to the power
of Judicial Review and can be declared null and void by the judiciary. The
President can be impeached and removed from power on the motion moved by
the House of Senate in the presence of the Chief Justice of the Supreme Court
of the US.

Similarly in India, the Prime Minister and his cabinet can be removed from
power by a successful no confidence motion passed by both houses of
parliament. The important policy decisions taken by the cabinet headed by the
Prime Minister, if necessary has to be enacted into laws only with the requisite
majority of the parliament. The laws enacted by the parliament are subject to the
judicial review of the Supreme Court of India. The Chief Justice and other
Judges of the Supreme Court are appointed by the President as recommended by
the cabinet and the Prime Minister.

Thus the powers of checks and balances have been the effective mechanism
both in the US and in India in safeguarding the democracy in both countries.

Differences between the federalisms of US and India:-

The differences that exist between the federalisms of US and India are unique.
These differences have been wantonly created by the architects of the Indian
constitution. The US federalism is very strong and more rigid as envisaged in
their constitution by its leaders. It is more federal than unitary.in character.
Whereas, India is more unitary than federal and we can even say that it is a
quasi-federal state.
1) The Constitution of US is very rigid than the Indian Constitution:-

i) The constitution of US is very brief and rigid running into only a few pages,
whereas the constitution of India is very voluminous containing as many as
XXII parts, 395 articles and ten schedules. Since the US constitution is very
rigid, the provisions meant for amending the constitution are also very rigid and
more formal. The last amendment carried out in the US constitution was in the
year 1992. Between the period 1989 and 1992, the US constitution has been
amended only 27 times, in which the 21st amendment was to reverse the 18th
amendment Whereas, the Indian constitution which came into force in the year
1950, has so far been amended 94 times. Therefore, it is easy to amend the
Indian constitution, since it involves four different types of procedures which
are comparatively easy than the amending procedure of the US constitution. For
example, recently, the salaries and allowances of the Indian MPs have been
hiked through a voice vote of the members of the Indian Parliament, whereas in
the US, the 27th amendment originally proposed on 25th September, 1789, was
ratified on May 7th, 1992, regulating the provision for varying the
compensation of the members of the House of Senate and Representatives.

ii) In the US, though there is a Federal Constitution, all the states affiliated with
the Federal Government, owing their allegiance to the Federal Constitution,
have their own constitutions to regulate their own governance. In India, all the
states affiliated with the Indian Union owe their allegiance only to the Indian
constitution and do not have their own constitution; however, each state is
empowered to enact its own laws included in the state as well as in the
concurrent list of the constitution.

2) While US has the Presidential form of Government, India has the

Parliamentary form of Government:-

In the US, the President is the head of the state and so his government is
invariably mentioned as the Presidential form of government or democracy; In
India, the President is only a nominal head or titular sovereign power;(de jure
sovereign), whereas the Prime Minister and his cabinet is the de facto or popular
sovereign in whom the real power exists. In the US, the President is popularly
elected, besides chosen through an electoral college.

However, nominating a candidate for contesting the Presidential election by a

political party in the US is a cumbersome process. This process is
comparatively simpler than the Indian system of forming the cabinet and
electing the Prime Minister from a party which enjoys a majority of elected
members of the Lok Sabha. While the US follows the bi-party system, India has
a multi-party system and a complicated process of election. While the US
President holds power for a period of 4 years, while the Indian Prime Minister
holds power for five years as long as his political party enjoys majority in the
Lok Sabha. However, the US President irrespective of his affiliation with a
political party, Republican or Democrat and irrespective of his party’s success
or failure in the elections for the House of Representatives or the House of
Senate, holds power for his full tenure.

A person in the US can hold the post of President only for two terms, whereas,
in India there is no such restriction to hold the post of a Prime Minister or
President. For example, Nehru was the Prime Minister of India between 1947
and 1964 for a period of 17 years.

The Indian cabinet and the Prime Minister are collectively and directly
responsible and answerable to the parliament and indirectly to the people,
whereas, the US President has constitutional obligations and duties and of
course answerable to the people. For the dereliction of duty and blunder
committed by a cabinet minister in India, the Prime Minister and his entire
cabinet colleagues are liable, responsible and answerable, because they have
collective responsibilities.

3) Differences between the legislatures of US and India:-

In India, the lower house or the Lok Sabha is more powerful and its members
are directly elected by the people and the members of the Upper house or Rajya
Sabha are indirectly elected every two years. The Lok Sabha members represent
their constituencies on the basis of their population strength; In the US, the
House of Representatives are elected on the basis of the population strength of a
state, but irrespective of the size of the state or its population, each state in the
US has only two senate members, totalling 100 members in all in the US. While
the Lok Sabha or the lower house is more powerful in India, the House of
Senate or the upper house is more powerful in the US. While a Senate member
in the US is directly elected, a Rajya Sabha member in India is indirectly
elected by a system of proportional and transferable voting system.

4) Differences in the judicial system between US and India:-

While the US has an advanced judicial system, India has a rapidly developing
judicial system. An accused or a witness in the US can depose from the place
where he is imprisoned, thereby avoiding unnecessary travel all the way from
Chicago or Los Angeles to New York using the advanced technology. Such
facilities are yet to develop in India. While a Judge in the US can hold his post
for life as long as he enjoys his good health, in India it is slightly different. A
District judge unless elevated retires at the age of 58, a High Court and a
Supreme court Judge retires at the age of 65.

CONCLUSION

On introspection of the aforesaid study, it has been emphasized that apart from
the general scheme of our constitution towards vesting of large powers in the
centre can assume extraordinary powers in respect of the administration of the
states. One such contingency is the proclamation of emergency under article
352, while the other contingency is the assumption by the president of all or any
of the powers of the state government under article 356. In view of the far
reaching consequences it is necessary to ensure that resort had to either of these
measures only in circumstances warranted by the constitution and keeping in
view the provisions thereof both in letter and spirit.

The concept of classical federalism has fuelled important debates about

essential elements of the most stable and successful federal system. But lessons
drawn from states like USA often do not apply to more volatile conditions, such
as those facing states seeking to recover from ethnic conflict.

In both democracies, the degree to which their version of federalism is effective

depends on the extent of compatibility between the country’s political actors. In
the U.S., polarization is on the rise, possibly because the institutions of
democracy created centuries ago are no longer adequate to address current
issues.

In India, the political machinery must address the continuing challenges of

secessionist movements and unresolved problems with neighbouring countries.
The demands of a growing middle class and a better educated, digitally-
connected youthful demography in a slowing economy plagued by corruption
are also becoming louder.

These, and other challenges, can be addressed only if the central and state
governments work together more harmoniously than in the past to craft policy
frameworks and administrative structures that are suited to the complex
economic space India inhabits in the globalised world today.