Federal, Unitary and Confederal Government Compared
Chapter Twenty-Five
Syllabus topic 2, "Federalism".
Pages 132 to 135 of 780
In one line
In a unitary State the regions hold whatever the centre gives them; in a confederation the centre holds whatever the units give it; in a federation both hold what the constitution gives them.
In the wording a student can write in an exam: the three forms are distinguished by where authority originates and who may withdraw it. In a unitary State all authority is vested in the central government, and regional bodies exercise powers delegated to them which may be enlarged, reduced or withdrawn by ordinary law. In a confederation the constituent States retain sovereignty, and the central body exercises only such powers as the States have conferred, usually acting on the States rather than on the citizen, with a right of withdrawal. In a federation both governments derive their authority from the constitution, each acts directly on the citizen within its own field, and neither may unilaterally alter the division.
The three forms, one by one
A unitary State. The United Kingdom, France and Japan. Local and even regional government exists, sometimes with wide powers, but it exists by statute. The Scottish Parliament has extensive competence, and it was created by an Act of the Westminster Parliament which could in law repeal it.
A confederation. The United States under the Articles of Confederation 1781 to 1789, the German Confederation, and to a degree the European Union in its intergovernmental aspects. The central body acts on the member States rather than on individuals, it usually depends on the members for revenue, and a member may leave.
A federation. The United States after 1789, Canada, Australia, Germany, Switzerland, Brazil and India. Two governments, one constitution, each acting directly on the citizen within its own field.
The decisive test is the third element in each description: who may change the division. In a unitary State the centre; in a confederation the units; in a federation neither alone.
Where India sits, and the provisions that make the question hard
The federal provisions. Article 1, a Union of States. Article 246 with the Seventh Schedule, an exclusive State List of sixty-one entries. Article 245, legislative power subject to the Constitution. The proviso to article 368(2), which protects the Lists from unilateral amendment. Articles 131 and 246, giving a court the umpire's role. Articles 268 to 281, a constitutionally regulated division of revenue with a Finance Commission.
The unitary provisions. Article 3, which lets Parliament alter the area, boundaries or name of any State by ordinary majority, the State's views being sought but not binding. Article 249, which lets Parliament legislate on a State subject if the Council of States resolves by a two-thirds majority that it is necessary in the national interest. Article 250, which lets Parliament legislate on a State subject during a national emergency. Article 356, which lets the Union assume the functions of a State government. Article 200, which lets a Governor reserve a State Bill for the President. Single citizenship, a single judiciary, a single election commission and a single audit.
Federal, Unitary and Confederal Government Compared
A federation with a strong unitary bias is what most writers conclude, and the argument is worked in the next chapter.
A worked example
Suppose three constitutional changes are proposed. Which of them is possible in each of the three forms of government?
Change one: the centre abolishes a region and redistributes its territory. In a unitary State this is ordinary legislation. In a confederation it is impossible without the member's consent, and probably not even then. In a classical federation it requires the consent of the unit and usually a constitutional amendment. In India it is possible under article 3 by ordinary majority after the President has referred the Bill to the State Legislature for its views, which the Parliament is not bound to accept. That single fact is the strongest argument against calling India a classical federation.
Change two: the centre legislates on a subject reserved to the regions. Unitary: always possible. Confederal: never. Federal: not without an amendment. India: possible under article 249 if the Council of States so resolves by two-thirds, and under article 250 during an emergency, in both cases temporarily.
Change three: a region leaves the country. Unitary: no such concept. Confederal: permitted. Federal: not permitted. India: not permitted, and article 1 was drafted to say so.
The exercise is worth doing because it locates India precisely. On change three India is federal. On change two India is federal with defined temporary exceptions. On change one India is closer to unitary than any other federation, and that is the honest answer.
The cases
The Indian units were never sovereign, which rules out the confederal model at the outset. In State of West Bengal v. Union of India, AIR 1963 SC 1241. Facts. The Union's acquisition of coal-bearing land vested in West Bengal under the Coal Bearing Areas (Acquisition and Development) Act 1957, the State suing under article 131 on the footing that it was sovereign within its own field. Held, by a majority. The Constitution is not traditionally federal in the sense of a compact between sovereign units, that the States were not sovereign before it, that Parliament's legislative power extends to State property unless the Constitution provides otherwise, and that no constitutional guarantee protects a State's property from acquisition by the Union. Subba Rao J. dissented. Why it matters here is that it forecloses the confederal reading and leaves the choice between federal and quasi-federal.
Federal, Unitary and Confederal Government Compared
And the territory of India is not the property of the States either. In In re Berubari Union and Exchange of Enclaves, Special Reference No. 1 of 1959, the opinion being pronounced on 14 March 1960. Facts. The Indo-Pakistan Agreement of 1958 required part of Berubari Union, which lay in West Bengal, to be transferred to Pakistan. Held. Article 3 governs the internal readjustment of the territories of States and does not authorise the cession of Indian territory to a foreign State, so a law under article 3 would be incompetent and an amendment under article 368 was necessary. Why it matters here is the shape of the answer: the internal boundary of a State can be changed by ordinary law, which is unitary; the external boundary of India cannot, which is a limit on the Union itself.
Distinctions
| Unitary | Confederal | Federal | |
|---|---|---|---|
| Where authority originates | The centre | The units | The constitution |
| Regional powers may be withdrawn by | The centre, by ordinary law | Not applicable | Neither, without amendment |
| Central body acts on | Citizens | Member States | Citizens, within its field |
| Right of a unit to leave | No such concept | Usually yes | No |
| Constitution | May be unwritten | A treaty or compact | Written and supreme |
| Umpire | None needed | The members | An independent court |
| Examples | United Kingdom, France, Japan | United States 1781 to 1789, German Confederation | United States after 1789, Australia, Canada, India |
| Indian provision | Which way it points |
|---|---|
| Article 1, a Union of States; no right to secede | Against confederal |
| Article 246 and the Seventh Schedule; article 245 | Federal |
| The proviso to article 368(2) | Federal |
| Articles 131 and 226; the Supreme Court as umpire | Federal |
| Article 3, boundaries alterable by ordinary majority | Unitary |
| Articles 249 and 250 | Unitary, temporarily |
| Articles 352 to 360 and 356 | Unitary, during an emergency |
| Single citizenship, judiciary, audit and election commission | Unitary |
What it does NOT mean
It does not mean a unitary State cannot have strong regional government. Devolution in the United Kingdom has given Scotland powers wider in some fields than an Indian State's. What makes it unitary is that they were given by statute and could in law be taken back.
It does not mean a confederation is a weak federation. It is a different thing: an association of States rather than a State.
It does not mean the labels settle anything by themselves. What matters is the answer to particular questions: who may alter the division, who may legislate on what, and who decides a dispute. That is why the next chapter tests India against those questions rather than against a label.
Quick revision
Unitary: all authority in the centre, regional powers delegated by statute and withdrawable; United Kingdom, France, Japan. Confederal: sovereignty in the units, the centre exercising conferred powers and usually acting on the States, with a right of withdrawal; the United States 1781 to 1789. Federal: both governments derive authority from a written and supreme constitution, each acts directly on the citizen in its own field, and neither may alter the division alone. India's federal provisions: articles 1, 245, 246 and the Seventh Schedule, the proviso to article 368(2), articles 131 and 226. Its unitary provisions: article 3, articles 249 and 250, article 356, article 200, single citizenship, a single judiciary, a single audit and a single election commission. State of West Bengal v. Union of India: the States were never sovereign, so the confederal reading is foreclosed. In re Berubari: article 3 cannot cede territory to a foreign State; that needs an amendment.
Federal, Unitary and Confederal Government Compared
Test yourself
1. Give the single test that distinguishes the three forms. Who may alter the division of powers: in a unitary State the centre alone, in a confederation the units, and in a federation neither acting alone.
2. Why is devolution in the United Kingdom not federalism? Because the Scottish Parliament and the other devolved bodies were created by Acts of the Westminster Parliament, which in law retains the power to alter or repeal them, so their authority is delegated rather than constitutional.
3. Name three Indian provisions that point away from a classical federation. Article 3, which lets Parliament alter a State's area, boundaries or name by ordinary majority without the State's consent; article 249, which lets Parliament legislate on a State subject on a two-thirds resolution of the Council of States; and article 356, which lets the Union assume the functions of a State government.
4. What did In re Berubari show about the two kinds of boundary? That an internal boundary between States may be altered by ordinary law under article 3, which is a unitary feature, while the external boundary of India may not be altered except by a constitutional amendment, which is a limit on the Union itself.
5. Why does State of West Bengal v. Union of India rule out the confederal model? Because it holds that the States were not sovereign before the Constitution and that the Constitution is not a compact between sovereign units, so there was never any sovereignty in the units for a centre to have received.
6. Is a federation formed by devolution a real federation? Yes, provided the division is constitutional rather than statutory and neither government may alter it alone. India, Belgium and Spain are federations or quasi-federations formed that way.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.