Depending on the nature of relationship between the Center and units, the governments can be classified into unitary and federal. In a unitary system, all power is bestowed on the Central government. In this kind of system, all powers are concentrated in the hands of the central power. Most governments have this form of government. The Central governments can create and abolish sub-national units. Unitary systems follow principles related to unity and consistency. Examples of unitary forms of governments are the UK, Italy France, China, etc.
A federal system of government is the one in which power gets divided between the Central or Federal governments and State governments. Both remain independent in their own spheres. The American Constitution established the federal system. It is the opposite of a unitary system. Here the state governments are given certain rights provided to independent States. Power is jointly shared between two levels of government and cannot be concentrated at the hands of either level. Examples of federal systems are Pakistan, Brazil, Switzerland, India, Australia, Canada, etc.
According to A.V. Dicey, “Federalism… means legalism- the predominance of the judiciary in the constitution- the prevalence of the spirit of legality among the people.” Dicey considered the American courts the pivot on which the constitutional arrangements of the country spin.
In the words of Wheare, “By the Federal Powers, is mean the method of dividing powers, so that the general and regional governments are each within a sphere coordinate and independent. Both the federal and regional governments are coordinate and independent in their spheres and not subordinate to another.”
India is a federal state but is sometimes considered a quasi-federal system as it has characteristics of both a federal and unitary system.
W.T. Wagnar stated that whether a State is federal or unitary depends on the federal features it has.
Features of the Federal System of Government
In the State of West Bengal v. Union of India 1963 AIR 1241, the Supreme Court of India states the conditions to be fulfilled for a Constitution to be considered federal as: –
1. Agreement: An agreement between independent units to relinquish their authority for the stake of common interest and keep the residue of the authority in constituent units. Usually, the units have separate Constitutions by which they are governed on all issues other than those surrendered to the Union.
2. Supremacy of Constitution: Supremacy of the Constitution cannot be changed except by the constituent units.
3. Distribution of powers: The distribution of powers in each sphere is autonomous and coordinate. The basis of the distribution is in issues of national importance, authority is given to the States as a uniform policy is required while in case of local interest, power remains with the State.
4. Supreme authority of Court: The Courts have the supreme authority to interpret the Constitution and declare actions violative of the Constitution as invalid. The Constitution in a federal system has several checks and balances. It must have provisions for resolving controversies between the Union and States.
Federalism in India
Features of federalism under the Indian Constitution are as follows: –
1. Division of powers: The Constitution itself has done the division of powers between the Center and States. The Constitution clarifies the powers of the Federal and state. Both are autonomous in their own spheres. For example, subjects under the Union List are those of national importance like International Relations, defense, communication, etc. while subjects under the State list include subjects like police, public order, public health, and sanitation which are matters of local importance. This demarcation is made in Article 246 under the 7th Schedule of the Constitution.
2. Supremacy of Constitution: The Constitution is the prime source of the powers of the different organs like the legislature, executive, and judiciary. These organs derive their legitimacy from the Constitution. Supremacy of Constitution needed for smooth functioning of a federal system.
3. Written Constitution: In a federal system, the Constitution must be specified. A written Constitution aids the clear demarcation of powers between different organs of the government and also between the Union and States. Apart from that, it helps to establish supremacy as well as clarity of the Constitution.
4. Rigid Constitution: An important part of a written Constitution is its rigidity. To be the supreme law of the land, a Constitution must be rigid. The procedure of amendment of the Constitution is complicated. Power of amending does not lie exclusively with the Central or State Governments.
5. Judiciary: Legal supremacy of the Constitution is essential for the existence of federal states. Such a system involves a division of powers between the Union and States. Such division must be balanced between the two levels of the government which is done by an independent and impartial authority greater than the ordinary bodies mentioned in the Constitution. The judiciary is such a body that interprets the Constitution and ensures the provisions are followed.
Besides, in federal states, disputes between Center and States are common and natural. The judiciary also resolves the disputes between the Center and States as well as between the States. The role of the Judiciary cannot be undermined in a federal system.
6. Bicameral legislature: India has a system of bicameral legislature which is considered an essential feature of federalism. The houses of the bicameral legislature are the two houses of the Parliaments which are the Upper House (Rajya Sabha) and the Lower House (Lok Sabha). For any amendment, bills must be passed from both houses. Certain states of India also have a bicameral legislature while the others have a unicameral legislature.
In Ganga Ram Moolchandani v. State of Rajasthan AIR 2001 SC 2616, the Supreme Court stated that the Indian Constitution is essentially federal and marked by traditional features of a federal system like the Supremacy of the Constitution, division of powers between the Union and the states as well an independent judiciary.
In ITC LTD v. Agricultural Produce Market Committee (2002), the Court opined similarly regarding the matter.
In Kesavananda Bharti v. State of Kerela AIR 1973 SC 1461, the Supreme Court ruled that the basic structures of the Constitution which included secularism, federalism, separation of powers, etc. cannot be amended. This landmark decision gave the basic structure doctrine.
Role of Judiciary in Federal System of Government
Judiciary is an important organ of all systems, whether unitary or federal. It ensures the administration of justice and fairness. It helps in the proper administration of the Constitution. In case of unitary system, it plays a less important role. The federal system, on the other hand, presents certain problems unique to it. As harmony between the different State governments and Federal government is an important part of it, the judiciary should be given a pivotal place. Aside from maintaining Center-State relations, the judiciary also needs to maintain the balance between different organs of the government and the autonomy of units. Thus, the role of the Judiciary in the United States of America and India cannot be undermined.
In a federal state, the legal supremacy of the Constitution is essential for the existence of the federal system. The nature of the federal system requires the division of powers between the Central government and State Government. It is essential to maintain a division of powers between the two levels of government and has to be done by an independent and impartial authority, above and beyond the ordinary bodies under the Constitution. Judiciary is such a body and has the power to interpret the Constitution and guard the entrenched provisions of the Constitution.
Federalism And Judiciary in India
In India, Judiciary has a considerably important place. The framers of the Constitution had the foresight to know an independent judiciary is required to ensure that the federal system of India works properly and that the civil liberties of the people are protected from state encroachment.
There are detailed provisions about the Indian judiciary given in Part V, Chapter IV of the Indian Consitution which discusses Union Judiciary, and Part VI, Chapter V talks about High Courts and Subordinate Courts in the States.
The authority of the Supreme Court of India is constitutional, civil, and criminal. It has been given original, appellate and advisory jurisdiction. This wide jurisdiction of the Supreme Court can be further widened by the Union Parliament.
Article 32 and Article 139 are particularly important for understanding where the judiciary stands with respect to the federal system. The former provision provides the right to constitutional remedies and makes provisions for moving to the Supreme Court for enforcement of fundamental rights in case of violation.
The Supreme Court is also empowered to issue writs for any of the rights enshrined under Part III of the Constitution. The writs are Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto. This power falls under both original and appellate jurisdiction. As a guardian of fundamental rights, the command of the Apex Court is not exclusive but concurrent and final.
Dr. B. R. Ambedkar said that Article 32 is the most important part of the Constitution without which the entire document would be a nullity. He considered it the heart and soul of the Constitution. This is the greatest safeguard for the safety and security of the individual.
This view was affirmed by a number of decisions like the Romesh Thappar v. State of Madras 1950 AIR 124. In this case, the Supreme Court opined that Article 32 accords a guaranteed remedy for the remedy of fundamental rights, and the remedy itself is a fundamental right. Thus, the Court, as a protector of fundamental rights cannot refuse to entertain responsibility to entertain applications against the infringement of such rights.
The Supreme Court has given other important decisions on this like in following cases: –
- Keshavan Madhava Menon v. State of Bombay (1951) S.C. 128;
- State of West Bengal v. Anwar Ali Sarkar (1952) S.C.R. 284;
- Charanjit Lal Chowdhury v. Union of India 1951 AIR 41;
- A K Gopalan v. State of Madras AIR 1950 SC 27 and
- Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Company (1954) S.C. 199
Under Original jurisdiction, the Supreme Court strikes balance between the national unity and independence of the member-States. The Supreme Court is accorded the power to act as the arbitrator between the Center and States and between the States.
Judiciary and Federalism in the United States
In the United States of America, though the role of judiciary regarding the interpretation of the Constitution has not been articulated, it has been hinted that it is responsible for safeguarding the Constitution.
In Marbury v. Madison (1803) 1 Cranch (U.S.) 137, the Supreme Court got the chance to decide the constitutionality of legislation enacted by the Legislature. The declaration of Judiciary Act of 1789 as ultra vires was a turning point for Court.
At that time, the Supreme Court rose to new heights. The inclusion of the Due Process Clause has enlarged its authority. The Court interpreted the provisions of the Constitution in a novel manner and acted as an umpire between the Center and State as well as the different organs. The Supreme Court judged the authority of one organ against another, confirmed the power of the Union against the State and guarded the individual against infringement by the State.
Judicial review is also an important tool that has helped the Supreme Court outline its superiority. The framers envisioned it as a tool for settling disputes between the Units and between the Center and States. The Supreme Court of the USA has fulfilled expectations and has aided the American federal system.
Judiciary and Federalism in Canada
Canada is a federal system with a constitutional division of powers between the center and provincial governments. This requires that the courts mitigate jurisdictional disputes between the two levels of government. It is accepted that the courts can fulfill this function only if they are left truly independent of the governments. Hence judicial independence is considered a fundamental constitutional principle. The Constitution provides for security of tenure, financial security, administrative independence, and adjudicative autonomy to ensure the independence of judges. This gives the judges freedom to decide without the influence of governments or political pressure.
In a federal system, a balance has to be maintained between the Center and the States for which an impartial and independent body is needed. Judiciary is such a body and hence it has to mitigate between the two levels of governments as well as the different organs. Hence Judiciary has a crucial role in a federal system
J.N. Pandey- Constitutional Law of India
Mital, P. N., and P. N. Mittal. “Judiciary and the Federal System: AN APPRAISAL OF THE SUPREME COURTS OF THE UNITED STATES OF AMERICA AND INDIA.” The Indian Journal of Political Science, vol. 25, no. 3/4, Indian Political Science Association, 1964, pp. 210–18, http://www.jstor.org/stable/41854032.
This article has been written by Rupsa Chattopadhyay, Fourth Year, B.A. LL.B. (Honours) at South Calcutta Law College.