India and the United States Compared
Chapter Fifty-Six
Syllabus topic 2, "Federalism". Set on Q.P. 12192 (2015), "Compare and distinguish the federal features of the Constitution of India with the United States of America", and on Q.P. 11757 (2016), "the features of federal government and difference between India and U.S. federation".
Pages 293 to 296 of 780
In one line
The American federation was made by States that already existed and kept what they did not give away; the Indian federation was made by a Constituent Assembly that created the States and gave them what it chose.
In the wording a student can write in an exam: both India and the United States have a written and supreme constitution, a division of legislative power between two governments, a bicameral central legislature with a chamber representing the units, a rigid amending procedure and an independent judiciary as umpire. They differ in the origin of the union, the destructibility of the units, the location of the residuary power, the citizenship, the judicial system, the emergency provisions, the equality of representation in the second chamber, and whether the constitution provides for the units to be governed from the centre.
Why the two are different: the origin
The United States was made by agreement. Thirteen States, already in existence, agreed to a federal Constitution and gave up specified powers. The Preamble's "We the People" reflected the ratifying conventions.
India was not. The Constituent Assembly drafted a Constitution for the whole country, and article 1 says India shall be a Union of States, the word chosen deliberately to record that the federation was not the result of an agreement and that no State may secede.
And State of West Bengal v. Union of India, AIR 1963 SC 1241, made that a holding rather than a description. The facts were the Union's acquisition of coal-bearing land vested in the State 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 the majority. The Constitution is not traditionally federal in the sense of a compact between independent sovereign units, that the States were not sovereign before the Constitution, and that Parliament may compulsorily acquire land vested in a State, there being no constitutional guarantee against it; Subba Rao J. dissented. Why it matters here is that almost every difference in the table below follows from this one fact.
The differences, with the text of each
Destructibility of the units. Article IV, section 3 of the United States Constitution provides that new States may be admitted by the Congress into the Union, but that no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States, without the consent of the legislatures of the States concerned as well as of the Congress. Article 3 of the Indian Constitution requires only that the President refer the Bill to the State Legislature for its views.
India and the United States Compared
The residuary power. The Tenth Amendment provides that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Article 248 of the Indian Constitution, with Entry 97 of List I, gives the residue to Parliament.
Citizenship. The United States has dual citizenship, of the United States and of the State of residence. Articles 5 to 11 of the Indian Constitution provide for a single citizenship of India.
The judiciary. The United States has a federal court system and separate State court systems. India has a single, integrated judiciary with the Supreme Court above every High Court, and there are no State courts in the American sense.
The second chamber. The Senate gives every State two seats regardless of population. The Council of States allots seats by population under the Fourth Schedule, and its members are elected by the elected members of the State Legislative Assemblies rather than directly.
Emergency. The Indian Constitution provides for a national emergency under article 352 during which Parliament may legislate on State subjects, and for President's rule under article 356 by which the Union may assume the functions of a State government. The United States Constitution has no counterpart to either.
Constitutions. Each American State has its own Constitution. No Indian State has one, Jammu and Kashmir having been the exception until 2019.
And the Lists. The Indian Constitution enumerates three Lists in the Seventh Schedule. The American Constitution enumerates the powers of Congress in article I, section 8 and leaves the rest to the States, with no concurrent list.
What is the same
A written and supreme constitution. Article VI, clause 2 makes the Constitution and the laws made in pursuance of it the supreme law of the land; articles 13 and 245 do the same work in India.
Judicial review, though inferred there and written here.
A rigid amending procedure. Article V of the United States Constitution requires two-thirds of both Houses and ratification by three-fourths of the States; article 368 requires a special majority and, for the entrenched matters, ratification by half the States.
An umpire. Article III there, articles 131, 132 and 136 here.
And a bicameral legislature with a chamber for the units, on different principles.
A worked example
A student is asked MU's 2015 stem and writes a table of ten differences with no reasons. What is missing?
The origin, stated once at the top. Almost every difference follows from it: units that existed first keep the residue and cannot be abolished, and units created by the document do not.
The consequence, stated at the end. A federation made by agreement has to be conservative about central power because the units can withhold consent; a federation made by a Constituent Assembly against the background of Partition and five hundred and sixty-two princely States was designed for a strong centre on purpose, and Ambedkar defended it on that ground.
India and the United States Compared
And one similarity that surprises examiners. Both have moved towards the centre in practice for the same reason: national economic regulation. In the United States that happened through the commerce clause and in India through the Concurrent List, articles 249 and 253, and now article 246A.
A table with reasons and a conclusion is a first-class answer. A table alone is a pass.
Distinctions
| Feature | United States | India |
|---|---|---|
| How the union was formed | By agreement among existing States | By a Constituent Assembly; article 1, a Union of States |
| Right to secede | Denied by the Civil War and by decision | Denied by the text; article 1 |
| Units destructible by the centre | No; article IV, section 3 requires the consent of the legislatures concerned | Yes; article 3 requires only that their views be sought |
| Residuary power | With the States or the people; Tenth Amendment | With Parliament; article 248 and Entry 97 |
| Citizenship | Dual | Single; articles 5 to 11 |
| Constitutions | One federal and one per State | One only |
| Judiciary | Federal and State systems | Single integrated judiciary |
| Second chamber | Equal representation, two per State | By population, Fourth Schedule; indirectly elected |
| Lists | Enumerated federal powers only | Three Lists in the Seventh Schedule |
| Emergency | No provision | Articles 352 to 360 |
| Governor of a unit | Elected | Appointed by the President, article 155 |
What it does NOT mean
It does not mean India is less federal in every respect. The Indian Constitution gives its States an exclusive List of sixty-one entries, which the American Constitution does not do at all, and an entrenched amending procedure that requires the States' ratification for the Lists.
It does not mean the American States are sovereign. They are not, and no federation's units are.
It does not mean the differences are all in the text. Both federations have moved towards the centre in practice, and in the United States that was done through interpretation of the commerce clause rather than by amendment.
And it does not mean the comparison settles anything. MU asks for a comparison, not a verdict on which is better, and an answer that argues the Indian design was correct for India is stronger than one that treats deviation from the American model as a defect.
Quick revision
Origin: the United States by agreement among existing States; India by a Constituent Assembly, article 1 saying Union of States to record that it was not an agreement and that no State may secede; State of West Bengal v. Union of India holds that the States were never sovereign. Differences: article IV section 3 protects American States from being redrawn without their legislatures' consent, while article 3 requires only that a State's views be sought; the Tenth Amendment leaves the residue with the States or the people, while article 248 and Entry 97 give it to Parliament; dual citizenship there, single citizenship under articles 5 to 11 here; separate State constitutions and separate State courts there, one Constitution and an integrated judiciary here; equal representation in the Senate, representation by population and indirect election in the Council of States; and articles 352 to 360, which have no American counterpart. Similarities: a written supreme constitution, judicial review, a rigid amending procedure, an umpire, and a second chamber for the units.
India and the United States Compared
Test yourself
1. State the single fact from which most of the differences follow. That the American federation was formed by agreement among States that already existed, while the Indian federation was created by a Constituent Assembly which itself brought the States into being, so the units did not give up powers they had held.
2. Quote the two provisions on destructibility. Article IV, section 3 of the United States Constitution: no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States, without the consent of the legislatures of the States concerned as well as of the Congress. Article 3 of the Indian Constitution: the President refers the Bill to the State Legislature for its views, which do not bind.
3. Where does the residuary power lie in each, and under what provision? In the United States with the States respectively, or the people, under the Tenth Amendment. In India with Parliament, under article 248 and Entry 97 of List I.
4. Give three structural differences beyond the division of powers. Dual citizenship against single citizenship; separate State constitutions and State court systems against one Constitution and an integrated judiciary; and the emergency provisions in articles 352 to 360, which have no counterpart in the United States Constitution.
5. Name one respect in which the Indian States are better protected than the American. They have an exclusive List of sixty-one entries, and the Seventh Schedule cannot be amended without ratification by the legislatures of not less than half the States under the proviso to article 368(2). The American Constitution enumerates federal powers and does not give the States a list of their own.
6. What similarity between the two federations do most answers miss? That both have moved towards the centre in practice for the same reason, the need for national economic regulation: in the United States through the interpretation of the commerce clause, and in India through the Concurrent List, articles 249 and 253, and now article 246A.
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.