Federalism in U.S.

and India: a comparative study

Abstract:

This research project compares federalism in India to the United States. The study examines
the federal Indian union's state structure, which is common in the "landscape" of comparative
constitutional law. The trend toward centralised function powers, both at the federal and state
levels, is most likely a kind of quasi-federalism. India's constitution does not refer to the
country as a federation. In his historic speech to the constituent assembly in November 1949,
Dr. Ambedkar listed many characteristics of the draught constitution that reduced the rigidity
and Legalism of federalism.

The original US constitution, the Articles of Confederation, favoured a Confederation of States

with a weak central government and decentralised power concentrated at the state level. The
articles were not successful, so a constitutional convention was called in 1787 to make
improvements to our government. Rather than altering the confederation structure, a third
option–what we now call a federal system or Federalism–was effectively invented. Multiple
levels of government–often state and national–are divided by the federal design. Federalism,
as defined, is an institutional arrangement that creates relatively autonomous levels of
government, each of which is able to act directly on behalf of the individuals to whom authority
has been delegated.

INTRODUCTION

Inconsistencies abound in federal administrations around the world. They are both unique
individuals who respond to similar aspirations and expectations in a continuously changing
world. This dynamic is shown by developments in two major federal institutions, India and the
United States, both of which have endeavoured to address severe imbalances in their
populations while searching for ways to bring democratic ideals to life.1 Despite the obvious
differences between the two systems, it might be beneficial for learners in both environments
to familiarise themselves with both sets of players and stresses. Because the framers of the

1
LIVINGSTONE, FEDERATION AND CONSTITUTIONAL CHANGE (1956), PP. 6-7.

1
Indian Constitution sought to embrace the finest elements of the world's many constitutional
forms while avoiding the vices inherent in each, they were forced to compromise on a number
of crucial matters between opposing theories and models. One of these is the merger of a federal
system with unitary characteristics.

The American federal system is fundamentally different from the Indian Federation's federal
system in terms of its origins, composition, and constitutional base. As a result, I will not
attempt to compare the federal frameworks of America and India. I'd bring out some of the
fundamental distinctions between the American and Indian federal systems as appropriate, and
the degree to which there are some parallels between the two federal systems is primarily
coincidental. So, my focus will be on both federal systems, and I hope that readers of this post
will gain a knowledge of the federal systems of the United States and India.

ORIGINS OF THE INDIAN FEDERAL SYSTEM

There has been substantial discussion among academics about whether the Indian
Constitution's political structure is 'federal.' The Drafting Committee referred to the
Constitution as 'federal in form,' but preferred to refer to it as a 'Union,' implying two key
features of Indian federalism: (a) that the Indian federation is not the result of an agreement
between the constituent units, and (b) that it is free to secede from them.

According to Granville Austin, the Indian Constitution was perhaps the first constituent
institution to embrace cooperative federalism from the start. Cooperative Federalism, in the
words of A.H. Birch demonstrates the practise of administrative collaboration between the
general and regional governments, the regional governments' partial reliance on payments from
the general government, and the fact that the general government frequently encourages
improvements in matters that are legally allocated to the region through the use of conditional
grants. Furthermore, the learned judge says:

"The problem of every federation, as observed by Bryce is, to keep the centrifugal and
centripetal forces into equilibrium, so that neither the planet States shall fly into space nor the
Sun of Central Government shall draw them into consuming fires."2

2
GRIFFITH, THE IMPASSE OF DEMOCRACY (1930).

2
The following are some of the most important features of the federal constitution:3

i. In the form of a written constitution, the state of the nation is carried on;
ii. The governments that operate in the world are the national and several regional
governments. The powers of these governments are synchronised and are defined in the
Constitution. Different themes of legislation are allowed for in the Constitution for the
national legislature and certain others for state legislatures. A list of subjects is also
included in certain federal constitutions.
iii. There is an independent tribunal to interpret the Constitution and adjudicate in the event
of a conflict between national and regional governments, with the power to declare any
legislation that trespasses on the territory assigned to the other null and void.
iv. The separation of powers between national and regional governments ensures that each
has authority over some revenue sources, allowing each to be financially independent
of the other, at least in theory.

However, the label used by the Constitution's framers is not conclusive on whether the political
structure adopted by it can legally be classified as federal: we must examine the Constitution's
specific provisions in light of the norms used by political scientists to classify political systems
as federal or unitary. The mere fact that a constitution is defined as federal does not imply that
it is federal in nature. When dealing with the Constitution, which is federal in letter and spirit,
it's crucial to understand how the Constitutional Act functions in practise. A unitary
constitution, as mentioned by the Federal Constitution, may be in effect, as the so-called
Federal Constitutions of Mexico, Venezuela, Brazil, and Argentina are.

NATURE OF THE CONSTITUTION OF INDIA

A federal structure with unitary features

Characteristics that are essential in federal politics:

• Supremacy of the Constitution: A federal state's existence is derived from the

Constitution, much as a corporation's existence is derived from the grant from which it was
created. Any power-executive, legislative, or judicial-is subject to and governed by the
Constitution, whether it belongs to the federation or is a component state.

3
K.C. WHEARE, MODERN CONSTITUTIONS (1932).

3
• Dual Government: Although a unitary state has just one government, the national
government, a federal state has two governments: the national or federal government and
the governments of each component state. While a unitary state can create local
subdivisions, these local authorities do not have their own autonomy; instead, they only
exercise the powers delegated to them by the national government from time to time, and
the national government has the authority to remove any or all of the delegated powers at
any time.
The merger of numerous States into a single State, on the other hand, is a federal state in
subjects involving shared interests, while each component State preserves autonomy in
other areas.4 The component states are not simply representations or agents of the federal
government; both the federal and state governments draw their authority from the same
source, namely the land constitution. A component state, on the other hand, has no right to
leave the federation at any time.

• Distribution of Powers: As a result, the objective of a federal state is to create a division

of powers between the federal government and the states. The "federal principle," defined
by Prof. Whereas "the way of distributing powers so that each of the general and regional
administrations is coordinated and independent within a domain," is this. In a unitary state,
the central government creates the demarcation of powers between the central and local
governments, which it can change on its own in a federal state, but this delineation is new.
In a federal state, the Constitution's moral superiority is vital to the state's life. Courts'
Authority Separation of powers must be maintained not just between the co-ordinated
branches of government, but also between the federal government and the states. This is
ensured by giving the courts the final authority to interpret the Constitution and to overturn
any action taken by the federal and state governments or their various organisations that
violates the Constitution's provisions.

Peculiar characteristics of federalism in India

To properly assess the existence of the Indian federation, it is necessary to examine its unique
qualities in comparison to other federal systems, particularly the American, which is still
recognised as the mother of federal constitutions.

4
LIVINGSTONE, FEDERATION AND CONSTITUTIONAL CHANGE (1956), PP. 6-7.

4
A. Mode of formation

A federal union can be formed in one of two ways, depending on the situation of the constituent
units at the time:

I. A voluntary agreement between a number of sovereign and independent States, such as

the United States of America or Australia, might be reached to manage such topics of
public interest.5
II. A unitary state's provinces, like Canada's, can be combined to form a federal union. The
provinces of Canada had no separate or independent life apart from the colonial
government, and the Union was not established by any agreement between them, but
rather by a British statute that revoked all of the Provinces' former rights and re-divided
them between the Dominion and the Provinces.

Lord Haldane writes in A.G. Commonwealth v. Colonial Sugar Refining Co.6:

"In a loose sense, the word ‘federal’ may be used, as it is there (in Canada) used, to
describe any arrangement under which self-contained States agree to delegate their
powers to a common Government with a view to frame entirely new Constitutions even
of the States themselves. But the natural and literal interpretation of the word confines
its application to cases in which these states, while agreeing on a measure of
delegation, yet in the main continue to preserve their original Constitutions.”

As a result, the Australian federation represented reality.

“Their Lordships are called upon to interpret the constitutional arrangement made
between the Commonwealth and the States, and they must settle on the language of the
Legislation (the Commonwealth of Australia Constitution Act), which law rights the
federal colonies have proclaimed to be reserved for themselves. It is clear that any
alteration in the existing distribution of powers has been safeguarded.” 7

On the other hand, His Lordship followed the Canadian Constitution.

“While it was founded on the Quebec Resolutions and must therefore be accepted
among the then provinces as a Union Treaty, it constituted a new departure once
enacted by the Imperial Parliament and established a new Dominion and Provincial

5
Atiabari Tea Co. v. State of Assam, (1961) 1 SCR 809.
6
A.G. for Commonwealth v. Colonial Sugar Refining Co., (1914) AC 237.
7
GRIFFITH, THE IMPASSE OF DEMOCRACY (1930).

5
 Government with defined powers and duties, both derived from an Act of Parliament
that was their legal source.”8

It is important to remember the uniqueness of India's federal system's origins. Before or after
the Act of 1935, the Provinces were not ‘sovereign' states like the States of the American
Union. The Constitution, like the Union of India, was drafted by the 'People of India' in the
Constituent Assembly, and no compact or agreement between independent states can be
attributed to it.

In terms of the Provinces, progress has been from a unitary to a federal entity, but this has not
occurred because, like Canada, the Provinces desired to become separate entities inside a
federal union. The Government of India Act, 1935, rendered the provinces arbitrarily
autonomous within a given jurisdiction, as we've seen. The Constitution's framers combined
these autonomous provinces with the Indian States to form a federal union, which the Indian
States had refused to join in 1935. A degree of federating unit homogeneity is a requirement
for their desire to form a federal union.

In India, though, the situation was different. From the beginning, the Indian States had their
own political body, and there was nothing in common between them and the Provinces that
made up the rest of India. Even under the federal system of 1935, the Provinces and the Indian
States were treated differently; the Indian States' accession to the system was optional, whereas
the Provinces' was mandatory, and the powers exercisable by the Federation over the Indian
States were also to be specified by the Instruments of Accession. They declined to join the
1935 federal structure with the rulers of the Indian States since it was optional. They overlooked
the 'federal sentiment,' or the desire for the rest of India to become a federal union (Dicey).
However, as previously stated, when the British Crown's supremacy lapsed, the political
situation changed, and most Indian states acceded to the Dominion of India on the eve of India's
independence, and were brought into the Union through a process of "merger" and "integration"
envisaged by the Constitution (which is fully dealt with in Part VII, post).9

As a result, the authors of the Constitution should be credited not so much for bringing the
Indian States into the federal system, but for putting them under the same Constitution as the
other parts of the federation as much as feasible. To summarise, the survivors of the ancient
Indian States were placed under the same governmental structure as the former Provinces

8
A.G. for Ontario v. A.G. for Canada, (1896) AC 332.
9
Automobile Transport v. State of Rajasthan, AIR 1962 SC 1406.

6
(States in Part B of the First Schedule) with a few exceptions (States in Part A). The
Constitution (Seventh Amendment) Act, 1956, completed the unification of the two categories'
units by abolishing the distinct bodies of the States in Part A and States in Parts B and replacing
them with one category of 'States.' The federal scheme of the Constitution is now uniform, not
heterogeneous, as it was under the 1935 Act.

B. Position of the States in the federation

From a historical standpoint, it is also evident that the States' function in our federal system
must necessarily be secondary to that of the Union. Because the union was not the result of any
agreement between separate states, the architects of the Constitution had no problem preserving
‘state rights.' This has resulted in a departure from the rigorous federal principle in several
areas. "An indestructible Union made of indestructible States," as the American Federation has
been described. The national government cannot remake the map of the United States by adding
new states or modifying the borders of the States as they existed at the time of the compact
without the assent of the legislatures of the states involved. The Australian Constitution
incorporates the same notion, with the added protection that a common referendum will result
in a change of boundaries in the affected State.

FEDERALISM IN USA

When the 13 North American colonies declared their independence from Great Britain on July
4, 1776, they recognised the necessity to coordinate their war operations and collaborate in
general. The Articles of Confederation, a constitution that established a League of Sovereign
States and committed States to cooperate in the fields of military relations, foreign affairs, and
other key fields, were adopted for these goals. The articles were barely adequate to keep the
states together during the war against England, and by the triumphant end of the conflict, they
had totally disintegrated as the states pursued their personal interests rather than the new United
States' national interest.10

10
M.P. JAIN, INDIAN CONSTITUTIONAL LAW (2010).

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 Origin and development of American federalism

"George Washington, Alexander Hamilton, James Madison, and other nationalist leaders urged
the states to send delegates to a constitutional assembly in Philadelphia in May 1787 to correct
the Articles' flaws and "to form a more perfect union." The United States Constitution was, of
course, drafted by the convention. The framers of the Constitution were opposed to both
confederal and unitary governments. Instead, they focused on federalism, a completely new
concept for the nascent American government. A confederation's union is made up of its
member nations. The states have sovereignty, and the residents of their particular states, not
the national government, are citizens.11

In a unitary system, on the other hand, the national government is sovereign, and the states, if
they exist at all, are only administrative arms of the central government. In the American
federal system, citizens maintain their basic autonomy by delegating certain responsibilities to
the federal government and reserving others to the states. Individuals make up both the general
government and their specific states. This little history is significant for two reasons.

• To begin with, the American federal government is not a decentralised hierarchy. States are
not administrative bodies whose sole purpose is to carry out the objectives of the federal
government. States are fully functional constitutional policies in and of themselves, with
the capacity to enact a wide range of policies for their own citizens, as granted by the
American people.
• Second, the architects anticipated that the states would be the primary policymakers in the
federal system. The federal government has only a few authorities, and they largely deal
with foreign and military affairs, as well as national economic issues like free trade across
state lines. Most domestic policy issues have been left to the states to address in accordance
with their respective backgrounds, requirements, and traditions. The first 75 years of
American growth (1790–1865) were distinguished by constitutional and political debates
concerning the basis of American federalism.

Thomas Jefferson, James Madison, Spencer Roane, and their partisan allies insisted that the
American union was nothing more than a confederation in which the states retained power and
supremacy. George Washington, Alexander Hamilton, John Marshall, and their Federalist
colleagues almost immediately supported a systematic conception of federal authority, whereas

11
K.C. WHEARE, FEDERAL GOVERNMENT (1951).

8
Thomas Jefferson, James Madison, Spencer Roane, and their partisan allies insisted that the
American union was nothing more than a confederation in which the states retained power and
supremacy.

In the 1850s, the debate centred on whether slavery was a matter of national or state policy.
The American Civil War (1860-1865) was significant in addressing these concerns about
federalism. The northern victory and subsequent ratification of the 13th, 14th, and 15th
amendments to the Constitution abolished slavery, established national citizenship, limited
state control over civil rights and freedoms, and established the national Constitution's and
laws' dominance over the states in general.12 Of course, federal issues persisted, and for the
first third of the twentieth century, the United States was divided. The Supreme Court
frequently invoked federal considerations in order to limit government jurisdiction over the
economy.

According to some critics, two events led to the rise of federal authority, resulting in an
imbalance in American federalism. First, during President Franklin D. Roosevelt's New Deal
programmes, the federal government's powers were greatly expanded.13 Social security,
unemployment compensation, government welfare programmes, industry and farm price
stabilisation programmes, and labour union collective bargaining all arose from the New Deal.
Many of these programmes were sponsored by the federal government but handled by the
states, resulting in the federal grant-in-aid structure. Since 1937, the federal government has
been able to define the area of its authority thanks to the expansion of the federal function,
which was legitimised by the United States Supreme Court. Second, during the 1950s and
1960s, the national government began to be seen as the leading defender and guardian of civil
rights and liberties.

The United States made a series of critical decisions. In violation of the 14th Amendment's due
process of law clause, the Supreme Court struck down state-sponsored racial discrimination,
state legislation discriminating against women, and state criminal prosecutions. As a result,
citizens looked to the national government's institutions to defend them against their own state
governments. These two developments necessitated a reconsideration of federalism. Until the
New Deal, the dominant view of federalism was "dual federalism," in which the central
government and the states have fully different sets of responsibilities. As a result, international

12
Dr. Ambedkar, Constituent Assembly Debates, Vol. VII, pp. 34-35.
13
D.D. BASU, COMPARATIVE FEDERALISM (2008).

9
affairs and national defence were solely the province of the federal government, while
education and family law were solely the province of the states.14

The New Deal abolished this arbitrary divide, giving rise to the concept of cooperative
federalism, a framework in which national and state governments collaborate to address a wide
range of social and economic issues. Cooperative federalism characterised American
intergovernmental relations in the 1950s and 1960s. The fundamental instrument of
cooperative federalism was grant in aid, a procedure by which the federal government
leverages its greater financial authority to give money to states to pursue mutually agreed-upon
goals. The establishment of the interstate highway system in the United States throughout the
1950s and 1960s is frequently touted as an example of cooperative federalism at its best. The
federal government covered up to 90% of the cost of highway building, gave technical help to
states in highway construction, and established regulations for new roads in general. States are
currently responsible for the construction and maintenance of roadways. Three points regarding
this type of cooperative federalism must be made explicit.

• First, the federal government and the states worked out their priorities; both wanted the
highways built.
• Second, only the federal government and the states were participating in the projects.
Cities and other local government bodies were not full collaborators in the cooperative
federalism of the 1950s and early 1960s.
• Third, grant-in-aid programmes had a limited impact on policy; much of the money was
spent on roads, airport construction, and housing and economic development. As late
as 1963, the total budget for all federal grants-in-aid was just over $9 billion.

Reagan successfully fought for higher military spending, tax cuts, and increased (or at least
maintained) levels of social security contributions, all while pursuing a smaller government,
particularly at the federal level. As a result, federal domestic grant-in-aid initiatives were
receiving fewer and fewer funds. Although federal grant-in-aid funding increased throughout
the Bush administration and remained relatively stable during the Clinton administration (about
$225,000,000,000,000 in 1996)15, Reagan's programme was successful, but it has created a new
set of issues for state and local governments.

14
GRANVILE AUSTIN, THE INDIAN CONSTITUTION (1966).
15
M.P. JAIN, INDIAN CONSTITUTIONAL LAW (2014).

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 American Federalism Today and Tomorrow

The United States' frozen federalism was never just a collection of static institutional
frameworks. Constitution, to be precise. American federalism, on the other hand, is a complex,
multi-dimensional framework with economic, administrative, political, and constitutional
components. This is even more true today than it has ever been. Let me suggest three major
concerns that Americans are confronted with today:

A. Unfunded Mandates

Due to a lack of federal finances to fund federal objectives, Congress used its constitutional
ability to "control trade between the states" to impose direct regulations on the states. These
restrictions are referred to as "unfunded mandates" because they compel states to act despite
the fact that they lack the necessary cash to do so. Many of these regulations deal with
environmental protection, historical preservation, and individual rights protection, yet they all
come at a high expense to the states. States reacted against these federal mandates, prompting
Congress to pass the Unfunded Mandates Act of 1995, which prohibits the federal government
from imposing new requirements on state and local governments without first providing the
necessary funding (with some threshold requirements).16 It's unclear if this measure would
successfully limit the scope of federal activities, especially given the Supreme Court's
restrictive view of Congress' authority.

B. Problems of the Constitution

After 1937, the United States the Supreme Court has defined Congress' right to spend money
on the general welfare and its power to regulate interstate trade so narrowly that the national
government can engage in nearly any economic, social, or even cultural activity it wants.

As a result, national laws address problems that are often local, such as crime, fire safety, land
use, education, and even marriage and divorce. However, in its 1995 judgement in United
States v. Lopez, the Supreme Court abruptly concluded that the national government had
overstepped its constitutional power by adopting a statute prohibiting the carrying of hand
firearms near public school facilities. The federal government had not demonstrated a nexus
between the presence of guns near school buildings and Congress' jurisdiction to prohibit
interstate trade, according to the Court. It was the first time in 60 years that the Supreme Court
had seriously questioned Congress's use of its trade power. At this moment, it's unclear whether

16
D.D. BASU, COMPARATIVE FEDERALISM (2008).

11
the Lopez decision will merely be an exception to the federal government's normally
unrestricted growth of constitutional authority or the start of a new jurisprudence aimed at
restoring federal authority boundaries.

C. International Trade

Federalism in the United States has taken on a new international dimension. GATT and
NAFTA, for example, will have a significant impact on federalism. The majority of observers
believe that state authority will be progressively reduced when state policies on economic
development, environmental protection, and professional licensure become subject to the rules
of these international agreements. These critics are correct, but international agreements also
have a side that could strengthen state authority. The American states, for example, are
promised at least a consultative role in the implementation of NAFTA. It will be interesting to
see how the states that make up the American, Canadian, and Mexican federations are affected
by this burgeoning "federation of federations."

CONCLUSION

Both India and the US have expanded their cast of characters, broadened certain decision-
making forums, built more networks and capacity for cooperation, boosted political and
practical policy conflict opportunities, and raised performance concerns with third-party
engagement. Despite the obvious contrasts between the two systems, students will benefit from
understanding all of the actors and stresses in both settings.

Both countries are continually changing and offer a conducive setting for a wide range of study
topics. Comparative analysis methodologies can be used to investigate the differences between
the two countries. However, comparative methods can be used to create studies that focus on
differences in the techniques used by states within a single country. For example, the author
believes there is potential in an examination of collaborative versus conflictual strategies used
in various Indian states. The author hopes that people will be inspired by these comments to
look for these and other researchable questions in this audience.

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