What Federalism Is
Chapter Sixty-Two
Syllabus topic 5, "Comparative Study of Federalism in India, USA, Switzerland, Ireland, Germany, Canada."
Pages 280 to 283 of 676
In one line
Federalism is a system in which two levels of government each hold power under the constitution, so that neither is the creature of the other.
In the wording a student can write in an exam: federalism is the constitutional distribution of governmental power between a general government and regional governments, each acting directly on the people within its own sphere and each deriving its authority from the constitution rather than from a grant by the other, so that neither level can unilaterally alter the division.
Why federalism exists
For two reasons, and they produce two different kinds of federation.
To unite what would not otherwise unite. Thirteen colonies, twenty six cantons, and the Australian colonies each wanted the advantages of union and would not surrender their separate existence. Federalism was the price of union.
To govern what is too large or too plural to govern as one. India and Canada were already under one administration and needed a division of power because a single legislature could not sensibly make law for the whole.
The distinction is worked in [Coming Together and Holding Together] and it explains almost every design difference between the six federations on this syllabus.
The four minimum conditions
One: a written constitution. The division must be recorded somewhere both levels can appeal to. This is why no unwritten federation exists.
Two: a distribution of powers. Each level must have subjects of its own. The techniques are compared in [The Distribution of Legislative Power].
Three: supremacy and rigidity of the constitution. Neither level may alter the division by its own act, which requires that the constitution prevail over ordinary law and be amendable only by a special procedure in which both levels have a part.
Four: an umpire. Somebody must decide boundary disputes, and it must be somebody neither level controls.
An answer that states these four and applies them is a complete answer to the definitional half of any federalism question.
Applying the conditions
| Written | Distribution | Rigid and supreme | Umpire | |
|---|---|---|---|---|
| United States | Yes | Article I section 8, Amendment X | Article V, Article VI | Supreme Court |
| Switzerland | Yes | Articles 3, 42 to 135 | Articles 140 and 192 to 195 | Federal Supreme Court, art.189 |
| Canada | Yes | Sections 91 and 92 of the 1867 Act | Part V, s.52(1) of the 1982 Act | Supreme Court, on reference |
| Germany | Yes | Articles 30, 70 to 74 | Article 79(2) and (3) | Federal Constitutional Court |
| India | Yes | Articles 245 and 246, Seventh Schedule | Article 368 proviso, art.13 | Supreme Court, art.131 |
| Ireland | Yes | None; Article 15.2.1 | Articles 46 and 47 | Not applicable |
Ireland fails the second condition and is therefore not federal, whatever MU's topic heading says. That should be said in an answer, courteously and once.
What Federalism Is
Wheare's federal principle
K. C. Wheare defined the federal principle as the method of dividing powers so that the general and regional governments are each, within a sphere, co-ordinate and independent. Two words carry the definition.
Co-ordinate means neither is superior. Each acts directly on the citizen within its own sphere.
Independent means neither derives its authority from the other. A regional government whose powers are conferred by the central legislature is not independent, which is why devolution is not federalism.
Wheare applied his own test and concluded that India was quasi-federal, which is the subject of [Quasi-Federal: the Argument About India].
What federalism is not
Not decentralisation. A unitary State may decentralise administration without dividing legislative power. Ireland's Article 28A guarantees local government and creates no legislature.
Not devolution. The Scottish Parliament exercises power conferred by an Act of the Westminster Parliament, which can in law be amended or repealed.
Not confederation. In a confederation the units retain sovereignty and the centre acts on the units rather than on the citizen. Switzerland's name is a historical survival; article 3 makes the cantons sovereign only to the extent that the Federal Constitution does not limit them, and the Confederation acts directly on the citizen.
A worked example
A regional government legislates on a subject and the central government says the subject is its own.
India. The court identifies the pith and substance of the impugned law, allocates it to an entry in List I, II or III, and if both are competent applies article 254 on repugnancy.
Canada. The same, drawn from the Privy Council's Canadian appeals, between sections 91 and 92, with federal paramountcy where both are competent.
United States. The question is whether Congress had the power at all under Article I section 8; if it did, the supremacy clause in Article VI decides the conflict.
Germany. Articles 70 to 74 allocate; article 72(2) determines whether the Federation may occupy a concurrent field; article 31 provides that federal law takes precedence over Land law.
Switzerland. Article 3 asks whether the Confederation has been given the power; if it has not, the canton keeps it; article 49 gives federal law precedence.
Ireland. The question cannot arise. Article 15.2.1 gives the Oireachtas the sole and exclusive law-making power, so a local authority acting beyond a statutory power acts ultra vires and no constitutional question arises.
The cases
Facts. State of West Bengal v. Union of India, AIR 1963 SC 1241, arose when the Union enacted the Coal Bearing Areas (Acquisition and Development) Act 1957 and sought to acquire land vested in the State of West Bengal, which sued under article 131 arguing that a federal constitution barred the Union from acquiring State property.
What Federalism Is
Held, by the majority. The Indian Constitution is not traditionally federal. The Court pointed to the absence of a separate constitution for each State, Parliament's power to alter State boundaries under articles 3 and 4, the single citizenship, the unified judiciary and the residuary power at the centre, and upheld the Act.
Why it matters here. It is the origin of the quasi-federal argument in the Supreme Court's own words, and it must be read with the next case.
Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose from Presidential proclamations under article 356 dismissing State governments.
Held, by a Bench of nine. Federalism is a basic feature of the Constitution; a proclamation under article 356 is justiciable and the President's satisfaction must rest on relevant material; the floor of the House is the appropriate forum for testing majority support; and the Assembly should not be dissolved before both Houses of Parliament approve.
Why it matters here. It is the modern position, and it is what makes the Indian answer to the classification question a two-sided argument rather than a label.
Distinctions
| Federal | Unitary | Confederal | |
|---|---|---|---|
| Source of regional power | The constitution | A grant from the centre | Sovereignty retained by the units |
| Whom the centre acts on | The citizen | The citizen | The units |
| Can the centre abolish the region? | No, not unilaterally | Yes, by ordinary law | The union may be dissolved |
| Example | India, USA, Canada, Germany, Switzerland | Ireland, United Kingdom | The Articles of Confederation 1781 to 1789 |
What beginners get wrong
"Federalism means a weak centre." It means a divided power. Canada, Germany and India all have strong centres and all are federal.
"India is not federal because the centre appoints Governors." The appointment of the head of a unit's executive is a feature of the Canadian federation too, under section 58 of the Constitution Act 1867, and nobody doubts Canada is federal.
"Switzerland is a confederation." The name survives from before 1848. Article 3 and the Confederation's direct action on the citizen make it a federation.
Limits and criticism
The four conditions describe the design, not the practice. A federation whose umpire is not independent is federal on paper.
Fiscal dependence can hollow out a division of powers, which is why [Fiscal Federalism and Equalisation] matters more to the working of a federation than the lists do.
The binary hides a spectrum. Between the American federation and the Irish unitary State lie devolution, asymmetric arrangements and supranational unions.
Quick revision
- Federalism: two levels, each holding power under the constitution, each acting directly on the citizen.
- Four conditions: a written constitution, a distribution of powers, supremacy and rigidity, and an umpire.
- Wheare's federal principle: general and regional governments each co-ordinate and independent within a sphere.
- Not decentralisation, not devolution, not confederation.
- Ireland fails the second condition: Article 15.2.1 gives the Oireachtas the sole and exclusive law-making power.
- State of West Bengal v. Union of India, AIR 1963 SC 1241: not traditionally federal.
- S.R. Bommai v. Union of India, (1994) 3 SCC 1: federalism is a basic feature.
What Federalism Is
Test yourself
1. Define federalism and state the four conditions. Federalism is the constitutional distribution of governmental power between a general government and regional governments, each acting directly on the people within its own sphere and each holding its authority under the constitution. The conditions are a written constitution recording the division, a distribution of powers between the levels, supremacy and rigidity of the constitution so that neither level can alter the division alone, and an independent umpire to decide boundary disputes.
2. Why is devolution not federalism? Because the regional power is conferred rather than constitutionally held. The Scottish Parliament exercises competence given by an Act of the Westminster Parliament which could in law be amended or repealed, so it is not independent in Wheare's sense; and the Sewel convention, which restrains Westminster, was held non-justiciable in R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5.
3. Apply the four conditions to Ireland. There is a written constitution and it is supreme and rigid, requiring a referendum for every amendment under Articles 46 and 47. There is no distribution of legislative power: Article 15.2.1 vests the sole and exclusive power of making laws for the State in the Oireachtas, and Article 28A guarantees local government without creating a legislature. No umpire is needed for a division that does not exist. Ireland is therefore unitary.
4. How should the Indian classification question be answered? By giving both authorities and arguing. State of West Bengal v. Union of India, AIR 1963 SC 1241, held the Constitution not traditionally federal, pointing to articles 3 and 4, the single citizenship, the unified judiciary and the residuary power at the centre. S.R. Bommai v. Union of India, (1994) 3 SCC 1, held federalism a basic feature. The honest conclusion is that India satisfies the four conditions and is federal in structure while being centralised in operation.
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.