Author Name:   faisal

while in a unitary State, all power is vested in a single Central Government, without imposing any constitutional limitations upon its authority, and the local authorities operate as administrative agencies of the Central government, exercising such powers as the Central government might delegate to the latter....

Federalism with Special Reference to the Distribution of Legislative Powers Under U.S.A. & Indian Constitutions

Historically speaking, the earliest form of political organisation was not federal but unitary. But it is the pressure of economic, political and social circumstances which impelled unitary States (generally monarchical) to enter into alliance with other States for meeting common problems, - which initially related to defence. Though there were loose forms of union in the world between States prior to 1787, modern federalism started with the Constitution of the United States (1787), which is regarded as the model of Federal Constitutions.[1] Subsequently, the adoption of the federal form in Canada, Switzerland and Australia gave a great impetus to federalism and a number of federal constitutions have cropped up since World Wars I and II, notable amongst which are – the U.S.S.R., West Germany, India, Malaysia and Nigeria. This paper deals with the general features of the federal structure and the distribution of powers in the federal structure of the U.S.A. and India and points out the basic structural differences between their schemes of the distribution of power.

Features Of Federalism
Political Science classified Constitutions as unitary and federal, from the organizational standpoint, i.e; from the standpoint of distribution of governmental powers[2]. In this context, Dicey observed that “Unitarianism... means the concentration of the strength of the state in the hands of one visible sovereign power…Federalism means the distribution of the force of the state among a number of co-ordinate bodies each originating in and controlled by the Constitution”[3]. Broadly speaking, while in a unitary State, all power is vested in a single Central Government, without imposing any constitutional limitations upon its authority, and the local authorities operate as administrative agencies of the Central government, exercising such powers as the Central government might delegate to the latter. On the other hand, in the federal State, the Constitution divides the powers between the central and regional governments, each deriving its powers from the provisions of written Constitution, so that there is a sphere of autonomy belonging to the territorial organizations called States, which cannot be withdrawn or curtailed at the will of the central organization, called the Federal Government.

Federalism is thus a system of government of a country under which there exist simultaneously a federal or Central Government (legislature and executive) and several State or provincial legislatures and governments as contrasted with a unitary State. Both federal and State governments derive their powers from the federal Constitution, both are supreme in particular spheres and both operate directly on the people; the State governments accordingly are not exercising powers delegated by the federal governments, nor they are subordinate to it (though they may deal with less important matters). The foregoing legal test of federalism, when analysed, leads to the following broad features of a federal Constitution.

1. Written Constitution – A federal state derives its existence from the Constitution, just as a corporation derives its existence from the grant or statute by which it is created. Every power – executive, legislative or judicial- whether it belongs to the federation, or to the component States, is subordinated to and controlled by the Constitution. Therefore, a federal State requires a written Constitution for the obvious reason that in order to be workable and stable and the limitations upon them to be enforceable, must be precisely defined by a written instrument. Thus, even though Australia adopted the system of responsible government (or the Cabinet system) from the unwritten Constitution of the U.K., it had to be embodied in a written Constitution. When a federal polity possesses two constitutions as in the case of U.S.A. and Australia (one for the federation and another relating to the internal structure and administration of each State) and if there is a conflict between the two, then the Federal Constitution shall prevail.

2. Dual Government – The Constitution sets up a dual government – one government having authority over the whole territory of the country or nation which adopts that Constitution (i.e; the Units of the federation) and a Government for each of the regional units of which the federation is composed (i.e; the Units of the federation)

3. Distribution of Powers - The most essential feature of a federal system is the distribution of powers between two governmental units – national and regional. However, even in unitary system, there is some distribution or devolution of powers as between the national and local governments, but no Court can interfere if the national government withdraws or revokes the powers which had been delegated by itself to the regional administration. Whereas in the federation, the regional units derive their powers, not by delegation from the national government, but from the same source as does the national government itself, viz., the Constitution, and the distribution of powers between the two units, which is made by the Constitution, is binding on the national as much as on the regional Governments, so that if either the general or a regional government transgresses the boundaries demarcated by such constitutional distribution of powers, its act would be pronounced by the Courts to be unconstitutional and void. The Constitution distributes powers between the two Governments in such a way that the governmental organs of each of the two Governments operate with direct authority over the citizens. In the case of a regional government, it has authority over the citizens residing within the territory of that region, while in the case of the federal government; its authority extends over citizens residing over the entire territory of the country, irrespective of the territorial barriers of the units of the federation.

4. No Unilateral Change – The foregoing distribution of powers made by the Constitution cannot be changed or amended at the unilateral will of the parties to the federation, i.e; the Federal Government or the Regional Governments. The Constitution provides a process for changing its provisions, called ‘amendment’. In other words, the Federal nations generally have rigid Constitution.

5. Interpretation By Judiciary – The distribution of powers made by the Constitution must be guarded by the Judiciary, which is to interpret the Constitution as the ‘fundamental law’ of the land and to enforce its provisions against both the Federal and Regional Governments and to invalidate any of their acts which transgresses the limitations imposed upon them by the Constitution. Where the Federating States have separate Constitutions, the problem arises as to how far the Constitutional decisions of the Federal Supreme Court shall be binding upon the States and their Courts. In this context, it was laid down in the case of Marbury vs. Madison[4], that the Federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of constitutional system[5].

All these features exist in the Constitutions of the U.S.A., Australia, West Germany on the one hand, and also in the Constitutions of Canada and India (subject to variations in matters of details), on the other hand, even though the latter two are strongly characterised by a central bias or balance in favour of the centripetal factors.

Distribution Of Legislative Powers In USA & India
Distribution of powers between the Union and the States is perhaps the most important feature of the federal Constitutions, so that chaos and conflict between the two competing jurisdiction can be avoided. Though the federal principle has been adopted by other countries from the American precedent, each country has introduced variation of its own, as a result of which the world of federalism today consists of different types of federal Constitutions, - none being an exact replica of the other. Even in the United States, owing to activist judicial interpretation as well as constitutional practice, federalism has assumed a shape which the founding fathers could little envisage. Nevertheless, the essentials of American federalism are the same after two centuries, namely, a legally enforceable division of powers between two governments, - federal and regional – by the written Constitution and the authority of the Courts to interpret, apply and enforce that constitutional distribution of powers.

As in other matters, the pattern of distribution of legislative powers is not the same under the different Federal Constitutions. But there is a general test which is broadly adopted by the different constitutions, namely, those matters of national concern must be handed over to the Union, while the States should have jurisdiction over matters of regional concern. The patterns of distribution in U.S.A. and India are as follows:

U.S.A.
In USA, there is a single enumeration of powers, which signifies that the Constitution simply enumerates the powers specially assigned to the Federal Legislature and leaves the entire unremunerated residue to the State Legislatures. Woodrow Wilson stated that “the State Governments are the ordinary governments of the country; the federal government is its instrument only for the particular purposes”[6]. The Constitution of the USA makes the division of powers between the Federation and the States by the following four provisions:

1. Powers of the Union - The Federal Congress has no general power to make laws for the people; it has got only enumerated powers. These powers are enumerated in Article. I, Section 8 to declare war, raise armies, coin money, regulate foreign commerce etc. As to the powers of the national government, Marshall, C.J. said in the case of Gibbons v. Ogden[7] that “the genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the national Government”

2. Powers of the States – The powers of the States are not enumerated by the Constitution. However, according to the Tenth Amendment, 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 the people. Thus, the residuary powers are given to the States. The reserved rights of the States inter alia includes the right to pass laws, to give effect to laws through executive action, to administer justice through the Courts, and to employ all necessary agencies for legitimate purposes of State Government.

3. Limitations on Union Powers – Congress is prohibited from taxing exports or giving preference to particular States in the exercise of its ‘Commerce’ powers, namely; “No Tax or Duty shall be laid on Articles exported from any State and no preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another, nor shall Vessels bound to or from, one State, be obliged to enter, clear or pay Duties in another” by Clauses. (5) and (6) of Article I, Section 9 respectively.

4. Limitation on States Powers – Though all powers not expressly given to the Union were reserved to the States (10th Amendment), the Constitution at the same time imposed certain limitations upon the exercise of those reserved powers so that their exercise might not interfere with the exercise of the powers conferred upon the National Government. These limitations are e.g;

a) Taxation – No State may, without the consent of Congress, lay any tax on tonnage or on imports and exports beyond what may be necessary for enforcing its inspection laws under Article I, Section 10(3) and Section 10(2) respectively.

b) Monetary – Under Article 1 Section 10(1), no State shall coin money, emit bills of credit; make anything but gold and silver coin a tender in payment of debts. Thus, the power over “currency and coin” given to the National Government is exclusive[8]. Actually, it is essential in the commercial and economic interests of the Union to have a uniform monetary system.

c) Foreign and Inter-State Agreements – As per Article I, Section 10 “no State shall enter into any treaty or confederation…..No State shall, without the consent of Congress, enter into any agreement or compact with another State or with a foreign power”. The prohibition against foreign agreements supplements the provisions regarding treaties {Article II, Section 2(2)} in favour of the National Government. The power is made exclusive by prohibiting the States to enter into that field[9] and the prohibition against the inter-State compacts without the consent of Congress is, obviously, meant to prevent the growth of political combinations which may encroach upon the supremacy of the United States.[10] In practice, however, the Clause has made possible inter-state co-operation on common problems with the approval of the National Government.

Subject to the above limitations, the States have full sovereign powers over all persons and things within their respective territorial limits with respect to all matters which are not delegated to Congress by the Constitution, expressly or by necessary implication.[11]

Thus, there is no Concurrent List in the American Constitution. However, a concurrent sphere has resulted from the judicial interpretation that there is a sphere, where a State can legislate so long as Congress does not ‘occupy the field’ or the State legislation does not conflict with a federal legislation.[12] Nevertheless, it seems that each government, national and State, is supreme within their own sphere. In other words neither Government can exercise its powers in such manner as to obstruct the free exercise of power by another.

The position on paper today is that Congress itself cannot under any device; exercise any power which is not granted to it expressly or by necessary implication. But the area of concern is “implied power” founded inter alia, upon the “necessary and proper clause” clause in Article I, Section 8(18) which signifies that the Courts have helped in the expansion of the federal power to an extent undreamt of by the fathers of the Constitution and hence the Congress may legislate on matters under the pretext of necessary and proper which though not comes under their domain.

India
The federal scheme in the Constitution of India is adopted from the Government of India Act, 1935. The said Act made an innovation upon several precedents to make a treble enumeration of powers, in order to make it as exhaustive as possible and also to minimize judicial intervention and litigation. The three legislative lists (I, II and III) respectively enumerated the powers vested in the Federal Legislature, the Provincial Legislature and to both of them concurrently (Section 100). If however, a matter was not covered by any of the three Lists that would be treated as a residuary power of the Federal Parliament (Section 104) and Section 107 provided for predominance of federal law in case of inconsistency with a Provincial Law, in the concurrent sphere[13]

Borrowing the pattern of treble enumeration from the Government of India Act, 1935, the Constitution of India makes a three-fold division of powers namely;

a) List I or the Union List – It contains subjects over which the Union shall have exclusive powers of legislation, including 97 items. These include defence, foreign affairs, banking, currency and coinage; union duties and taxes and the like.

b) List II or the State List – It comprises of 66 items or entries over which the State Legislature shall have exclusive power of legislation, such as public order and police, local Government, public health and sanitation, agriculture, forests and fisheries, education, State taxes and duties, and the like.

c) List III or the Concurrent List – It gives concurrent powers to the Union and the State Legislatures over 47 items, such as Criminal Law and procedure, Civil Procedure, marriage, contracts, torts, trusts, welfare of labour, social insurance, economic and social planning.

Thus the framer of the Indian Constitution attempted to exhaust the whole field of legislation as they could comprehend, into numerous items, thus narrowing down the scope for filling up the details by the judicial process of amplifying the given items. Besides, wherever any conflict could be anticipated, the Constitution has given predominance to the Union jurisdiction, so as to give the federal system a strong central bias. Similarly, in all the cases which have come up to the Supreme Court, the Court has upheld the jurisdiction of the Union Parliament. Thus, in case of overlapping, the power of the State Legislature to legislate with respect to matters enumerated in the State List has been made subject to the power of the Union Parliament to legislate in respect of matters enumerated in the Union and Concurrent Lists, and the entries in the State List have to be interpreted accordingly.[14] Similarly, in the concurrent sphere, in case of repugnancy between a Union and a State law relating to the same subject, the former prevails. If, however, the State law was reserved for the assent of the President and has received such assent, the State law may prevail notwithstanding such repugnancy, but it would still be competent for Parliament to override such State law by subsequent legislation {Article 254(2)}[15]

These apart, the vesting of residual power under the Constitution follows the precedent of Canada, for it is given to the Union instead of the States as in USA and Australia. The Constitution of India vests the residuary power i.e; the power to legislate with respect to any matter not enumerated in anyone of the three Lists,- in the Union Legislature (Article 248). However, the final determination as to whether a particular matter falls under the residuary power or not is that of the Courts.[16]

Moreover, even apart from the central bias in the normal distribution of powers, there are certain extraordinary provisions in the Indian Constitution which provide for expansion of the federal power in cases of emergency or other predominating national interests, instead of leaving it to the judicial interpretation as in USA, Australia or Canada, as we have noticed. These provisions therefore constitute additional limitations upon the powers of the State Legislatures. These exceptional circumstances are:

1. National Interest – In the national interest, Parliament shall have the power to make laws with respect to any matter included in the state List, for the temporary period, if the Council of States declares by the resolution of 2/3 of its members present and voting, that it is necessary in the national interest that parliament shall have power to legislate over such matters. Each such resolution will give rise a leases of one year to ten law in question. A law made by Parliament, which Parliament would not but for the passing of such resolution have been competent to make, shall, to the extent of the inconsistency, seas to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period (Article 249). The resolution of the council of states may be renewed for a period of one year at a time.

2. Proclamation of emergency – While a proclamation of emergency made by the parliament is in operation, parliament shall have similar power to legislate with respect to State subjects {Articles 250, 353(b)}. A law made by the parliament, which parliament would not but for the issue of such proclamation have been competent to make, shall, to the extent of in competency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period (Article 250).

3. By agreement between States – If the Legislatures of two or more States resolve that it shall be lawful for Parliament to make laws with respect to any matters included in the State List relating to those States, Parliament shall have such power as regards such States. It shall also be open to any States to adopt such Union Legislation in relation to itself by a resolution passed in that behalf in the Legislature of the state. In short, this is an extension of the jurisdiction of the union parliament by consent of the State Legislatures (Article 252).[17]

4. To implement Treaties – Parliament shall have the power to legislate with respect to any subject for the purpose of implementing treaties or international agreements and conventions. In others, the normal distribution of powers will not stand in the way of parliament to enact legislation for carrying out its international obligations, even though such legislation may be necessary in relation to a State subject (Article 253)

5. Proclamation of Failure of Constitutional Machinery in the States – When such a proclamation is made by the President, the President may declare that the powers of the Legislature of the State in question shall be exercisable by or under the authority of Parliament {Article 356(1)(b)

Comparison Between U.S.A. & India
On the plain reading of the Constitutions of India and America, it seems that the basic structures of the division of power are same. However, there are some apparent distinctions between the two setups. Firstly, under the Indian Constitution, the powers are relatively more enumerative than the USA. Unlike the latter, the former lays down as many as 211 items into three lists. Secondly, Indian Constitution provides three Lists namely; Union List, State List and Concurrent List whereas; in USA, there is a single enumeration of powers, which signifies that the Constitution simply enumerates the powers specially assigned to the Federal Legislature and leaves the entire unremunerated residue to the State Legislatures. Finally, in India Residuary Powers is given to the Union whereas; in USA, the same is given to the States.

Conclusion
Federalism originated in the experience gathered from political experiments that not merely defence but a number of other subjects, such as control of foreign affairs, inter-state and foreign commerce, export and import and the like, are matter of national interest which require to be dealt with by a national organisation whereas; other matters such as public order, public health, fire, water and electric supply services, which are the concern of the inhabitants of a particular local area and have problems of their own connected with the exigencies of that particular locality, would be best administered if entrusted to the representatives of that area. The basic concept of division of power is same even today in every federal structure. However, the principles of strictly separating the power between the two governments are not an easy task and disputes and differences are always there. The only golden rule seems to be that in case of conflict and doubt as to the appropriate government in relation of any matter is that the benefit should be given to the Central government. However, this rule is not always justifiable especially in the case of taxation simply because the Regional or State governments also need the finance to run the administration. Nevertheless, Federalism is appropriate to large countries like India where government from one centre would be complicated and difficult and could readily be out of touch with the needs and desires of widely separated areas and to countries, where particular parts are radical, linguistic and legal or other particularities which they desire to have safeguarded. In short, in spite of some difficulties in interpreting the legislative entries of the federal structure, federalism will stay more importantly because of the globalisation of the economy and the desire to achieve the “welfare state”.
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[1] Cf. Bryce, American Commonwealth, Vol II, p. 28
[2] WHEARE, Modern Constitutions (1966), pp. 19ff, Federal Government (1963), pp. 2ff. These apart, one more system was recognise which was called as ‘Confederation’; which stands between unitary and federal.. A confederation is a loose association of independent States which create a union or Central Government for certain limited common purposes (such as defence) while the member States retain their principal powers of government, and the very existence of the Central Government depends on the will of the member-States. Thus, a confederation owes its existence, not upon the terms of a constitution, but upon a compact from which they are free to withdraw at will. The Central authority in a confederation is a mere agency of a member-States and the latter have powers superior to that agency. The Central agency has no direct relationship with the people and the commands of the agency would operate upon the people in each individual State only to the extent the State Government so permits.
[3] DICEY, Law of the Constitution (10th Edn.), pp. 155-157
[4] (1803) 1 Cr 137.
[5] Cooper v. Aron, (1958) 358 US 5 (16-17).
[6] Woodrow Wilson, Constitutional Government, quoted in New York v. United States, (1946) 326 US 572 (592).
[7] (1824) 9 Wh (195).
[8] University of Illinois v. U.S., (1933) 289 US 48
[9] University of Illinois v. U.S., (1933) 289 US 48
[10] Virginia v. Tennessee, (1893) 148 US 503.
[11] Carter v. Cater Coal Co., (1936) 298 US 238; Colorado v. Symes (1932) 286 US 510
[12] Gibbons v. Ogden, (1824) 9 Wh (195)
[13] Re. C.P. Motor Spirit Taxation, AIR 1939 FC 1(5); Megh Raj v. Ala Rakhia, AIR 1947 PC 72; Prafulla v. Bank of Commerce, (1947) 51 CWN 599 (610) (PC)
[14] K.S.E.Bd. v. Indian Aluminium, AIR 1976 SC 1031 (1036-37); I.T.C. v. State of Karnataka, (1985) Supp SCC 476 (para. 19); Sudhir v. W.T.O., AIR 1969 SC 59 para. 7(3)
[15] U.P.E.S. v. Shukla, AIR 1970 SC 237(239)
[16] Union of India v. Dhillon, AIR 1972 SC 1061.
[17] Union of India v. Basavaiah, AIR 1972 SC 1415; R.M.D.C. v. State of Mysore, AIR 1962 SC 594

The  author can be reached at: faisal@legalserviceindia.com

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