By Shalin Chaudhary and Pratyush Raj
Federalism is a national political system in which two levels of government, the central government and the regional/state government control the same territory and citizens. It is a philosophy or ideology of political organisation which involves a combination of the principles of centralisation, non-centralisation and power sharing. Federal government, on the other hand, is actual organisation according to these principles, which seeks to maximally express all its ramifications including in particular its territorial ramifications. The word federal came into English via French from Latin. Foederatus means “bound by treaty” deriving from foedus: treaty andfidere: to trust. Under Federalism, the regions surrender some of their political power to the central government, relying on it to act for the common good.
It is a political concept in which a group of members are bound together by covenant with a governing representative head. The term “federalism” is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and constituent political units. Federalism is a system based on democratic rules and institutions in which the power to govern is shared between national and regional/state governments, creating what is often called a federation.
The origin of the concept of federalism comes in various approaches. Dicey stated that federalism is a national constitution for a body of states which desire union and do not desire unity. He described a federal state as political contrivance intended to reconcile unity and power with the maintenance of state rights. The essence of a federation is the existence of union and its states and the division of power between the union and the states and it is immaterial whether the bond of the union is strong or weak.
Misconception can also arise if one overlooks or underrates the importance of federal principle, namely constitutional distribution of power and diverts one’s might modify the scheme of distribution in special situations or to other peculiarities of the country’s constitution. A true federation contemplates that the political system must reflect principle by actually diffusing power among a number of substantially self-sustaining centers. This is sometimes called non-centralisation. But non-centralisation is different from decentralization. In the latter, there is a conditional diffusion of specific power, but it is subject to recall by unilateral decision. It is also different from ‘devolution’, in which a central Government grants power unilaterally to sub-national units. Non-centralisation in exercising political power cannot be taken away from the general or state governments without common consent. Federalism is intended to preserve self-government.
In a federal system therefore, laws are made both by the regional governments and by a central government. Though there is a division of functions between the centre and the units in federation, and the respective areas of competence of each is earmarked, yet it would not be correct to assume that the various governments act in water tight compartment. As these governments act side by side in the same country, inevitably many types of relations arise amongst them and many instrumentalities to promote intergovernmental co-operation come into existence.
In the three old federations of the U.S.A., Canada and Australia, in the formative stages of development, the dominant operative concept was that of ‘competitive federalism’ which denotes a spirit of competition and rivalry between the centre and the state. The formative stages were, therefore, marked by intergovernmental disputes; the units were very conscious of their powers and rights and, thus, resented the growth of the centre’s powers and any encroachment by it on their domain.
With the passage of time, however, the concept of ‘competitive federalism’ slowly gave way to ‘co-operative federalism’. This trend has been promoted by three powerful factors:
1) The exigencies of war when for national survival, national effort takes precedence over the fine points of Centre-State division of power;
2) Technological advances means making of communication faster;
3) The emergence of the concept of social welfare state in response to public demand for various social services involving huge outlays which the government of the units could not meet by themselves out of their own resources.
The concept of ‘co-operative federalism’ helps the federal state, with its divided jurisdiction, to act in unison. It minimizes friction and promotes co-operation among the various constituent governments of the federal union so that they can pool their resources to achieve certain desired national goals.
Reasons for Federalism:
Many arguments for federalism have traditionally been put in terms of promoting various forms of liberty in the form of non-domination, immunity or enhanced opportunity sets. When considering reasons offered in the literature for federal political orders, many appear to be in favor of decentralization without requiring constitutional entrenchment of split authority. Two sets of arguments can be distinguished: Arguments favoring federal orders compared with secession and completely independent sovereign states; and arguments supporting federal arrangements rather than a (further) centralized unitary state. They occur in different forms and from different starting points, in defense of ‘coming together’ federalism, and in favor of ‘holding together’ federalism.
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. 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-coordinate bodies each originating in and controlled by the constitution”. 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 power between the central and regional government, each deriving its power from the provisions of written constitution, so that there is a sphere of autonomy belonging to the territorial organisations called states, which cannot be withdrawn or curtailed at the will of the central organisation, 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 deal with less important matters). The foregoing legal test of federalism, when analysed, leads to the following broad features of the federal constitution:
1. Written Constitution: A federal state derives its existence from the constitution, just as a corporation derives its existence from a grant or statute by which it is created. Every power- Legislative, Executive or Judicial, whether it belongs to the federation, or 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 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 cabinet system) from the unwritten constitution of U.K., it has 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. units of the federation) and a government for each of the regional units of which the federation is composed.
3. Distribution of powers: The most essential feature of the federal system is the distribution of power 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 government, 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 federation, the regional government derives its power, 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 power between the two units, which is made by the constitution, is binding on the national as much as on the regional government, so that if either government transgresses the boundaries demarcated by such constitutional distribution of powers, its act would be pronounced by the court as unconstitutional and void. The constitution distributes the power between 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 case of the federal government, its authority extends over citizens residing in the entire territory of the country, irrespective of the territorial barriers of the units of federation.
4. No Unilateral Change: The foregoing distribution of the power 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 of changing its provisions, called ‘Amendment’. In other words, the federal nations generally have written constitution.
5. Interpretation by Judiciary: The distribution of power 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, 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 county as a permanent and indispensable feature of constitutional system.
Mutual Obligations between Federation and States:
Obligations fall under the following categories:
a) Maintaining each other’s survival;
b) Maintaining the form of government prescribed by the constitution;
c) Maintaining the federal alliance; and
d) Respecting each other as parallel governments and treating all states equally.
It is essential consequences of the creation of a federal state that there will be parallel governments in treating the country. The existence of parallel governments pre-supposes that constitution must ensure that these parallel governments may be allowed to function without interference from each other, except in special situations envisaged by the Constitution. It is also desirable that each state should be treated by federation equally and at par with every other state of the federation, unless there are special reasons to the contrary.
If federation is expected to maintain the existence of the states and their constitutional order, the state sin their turn are also expected to maintain the federal alliance. Thus there are many federal constitutions express provisions prohibiting secessions.
Federalism originated in the experience gathered from political experiments, not merely in Defense but a number of other subjects, such as control of foreign affairs, inter-state and foreign commerce, export and import and the like, are matters of national interest which is required to be dealt with by the national organisation. There can be a variety of motivations for various units to come together to constitute a federation. The political and economic theories of federalism attempt to understand the rationale for the “coming together” to form federations and once they are formed, analyze the conditions for “holding together”. The political impulse for the smaller units to federate has to be found in issues of freedom, security, political stability and strength while keeping a separate group identity. Similarly, access to a larger common market, reaping economies of scale in the provision of nation level public goods and availability of wider choice in the bundle of services to meet diverse preferences are some of the economic reasons for the smaller units to come together to form a federation. Each federating unit will try to bargain terms advantageous to it to join the federation while the federation will try to attract entry and control exit.