Models of Federalism: USA, Canada and India

Origins and Structure

• The Constitution of 1787 (in force 1789) replaced the weak Articles of Confederation. It is the oldest written federal Constitution – the classical dual federalism model, a "coming-together" federation.

• Enumerated powers of Congress are listed in Article I, Section 8; residuary powers belong to the States (Tenth Amendment: powers not delegated to the United States nor prohibited to the States are reserved to the States or the people).

• Supremacy Clause (Article VI): the Constitution, federal laws and treaties are the supreme law of the land; state judges are bound.

• Equal representation of states in the Senate (two each), regardless of population; no state can be deprived of equal Senate suffrage without its consent (Article V).

• Amendment procedure (Article V): proposal by two-thirds of both Houses (or a convention called by two-thirds of the state legislatures), and ratification by three-fourths of the states.

• Dual court system: federal courts and state courts operate side by side; the Supreme Court is the final interpreter of the Constitution.

• Dual citizenship: citizen of the USA and of the State of residence (Fourteenth Amendment).

• Each State has its own Constitution.

Phases of American Federalism (Highly Testable)

1. Dual federalism ("layer-cake" – associated with Edward Corwin): till about the 1930s; strict separation of national and state spheres.

2. Cooperative federalism ("marble-cake" – Morton Grodzins): from the New Deal (1930s); shared functions through grants-in-aid and joint programmes.

3. Creative federalism (Johnson's Great Society, 1960s) and New Federalism (Nixon, Reagan, and the later revival of state powers by the Rehnquist Court).

4. Modern debates on coercive and competitive federalism.

Landmark Cases

• McCulloch v Maryland (1819): Chief Justice John Marshall upheld Congress's power to create a national bank under the Necessary and Proper Clause (implied powers) and held that states cannot tax federal institutions ("the power to tax involves the power to destroy").

• Gibbons v Ogden (1824): broad reading of the Commerce Clause; Congress controls interstate commerce.

• United States v Lopez (1995): first major limit on the Commerce Clause since the New Deal (Gun-Free School Zones Act struck down).

• New York v United States (1992) and Printz v United States (1997): Congress cannot command state legislatures or officials to enforce federal programmes (the anti-commandeering doctrine).

• NFIB v Sebelius (2012): upheld the Affordable Care Act's individual mandate under the taxing power; limited coercive spending conditions on states regarding Medicaid expansion.

• Erie Railroad v Tompkins (1938): federal courts apply state substantive law in diversity cases.

Summary

Strong states, strict federal structure, equal Senate representation, rigid amendment, residuary powers with states, and judicial review as the guardian of federalism.

Origins and Structure

• Constitution Act, 1867 (formerly the British North America Act, 1867): Confederation of Ontario, Quebec, Nova Scotia and New Brunswick. Canada is a parliamentary federation and a constitutional monarchy; the Governor General represents the Crown.

• Patriation (1982): the Constitution Act, 1982 (including the Charter of Rights and Freedoms) ended the need to approach the UK Parliament for amendments. The Patriation Reference (1981) held that the federal government's unilateral patriation was legal but violated a convention requiring substantial provincial consent. Quebec did not sign the 1982 agreement.

• Distribution of powers: Section 91 gives enumerated powers to the federal Parliament and also the residuary power – "peace, order and good government" (POGG); Section 92 lists exclusive provincial powers (property and civil rights, local and private matters, administration of justice, etc.); Section 93 deals with education; Section 95 gives concurrent power over agriculture and immigration. The design intentionally gave the centre more power than in the USA, reacting to the American Civil War (Sir John A. Macdonald's vision of a strong centre).

• Federal paramountcy: in case of conflict between valid federal and provincial laws, the federal law prevails.

• Senate: appointed (by the Governor General on the advice of the Prime Minister), regionally distributed, not elected, and so weaker as a representative of the provinces than the US Senate. This is a regular criticism.

• Amendment procedure (Part V, Constitution Act, 1982): general formula (the 7/50 rule): resolutions of both Houses of Parliament and the legislatures of at least two-thirds of provinces having at least 50% of the population; special formulas apply, including unanimity for certain matters (the office of the Crown, composition of the Supreme Court, the amending formula itself).

• Notwithstanding clause (Section 33 of the Charter): allows Parliament or a provincial legislature to override certain Charter rights for five years (renewable).

• Judiciary: a unified court system under the Supreme Court of Canada, with judges appointed federally. It is not a dual system like the USA.

• Asymmetrical federalism and Quebec: Quebec has distinct civil law, language and cultural recognition. The Quebec Secession Reference (1998) held that Quebec has no unilateral right to secede under Canadian or international law, but a clear majority on a clear question creates a duty to negotiate. The Court identified four underlying constitutional principles: federalism, democracy, constitutionalism and the rule of law, and protection of minorities.

Role of the Privy Council (Memory Points)

Early interpretation by the Judicial Committee of the Privy Council (Lord Watson and Viscount Haldane) favoured provinces and narrowed federal power by a restrictive reading of POGG and trade and commerce. In the Labour Conventions case (1937), the Privy Council held that the federal government cannot implement treaties in areas of provincial jurisdiction merely by signing them. Appeals to the Privy Council ended in 1949; the Supreme Court of Canada later restored a more centralist balance.

Summary

A centralised federation with strong provinces in practice; parliamentary; residuary power with the centre; appointed Senate; asymmetry for Quebec; the Charter's notwithstanding clause is distinctive.

Constitutional Structure

• Article 1: "India, that is Bharat, shall be a Union of States." Dr. B.R. Ambedkar explained in the Constituent Assembly that "Union" was used because the Indian federation is not the result of an agreement between states, and no state has a right to secede. He said the Constitution can be both unitary and federal according to the requirements of time and circumstances.

• Seventh Schedule: Union List, State List and Concurrent List (Article 246). Residuary powers lie with Parliament (Article 248 and Entry 97 of the Union List). The Concurrent List is borrowed from Australia; the scheme of division from the Government of India Act, 1935.

• Doctrines for resolving conflicts: pith and substance, colourable legislation, incidental and ancillary powers, harmonious construction, and repugnancy (Article 254: a Union law prevails over a State law on a Concurrent subject, unless the State law has received Presidential assent).

• Article 3: Parliament can form new states and alter areas, boundaries or names of states by simple law; the State's views are only to be ascertained and are not binding (Babulal Parate v State of Bombay, 1960). This gives the description "an indestructible Union of destructible States".

• Emergency provisions (Articles 352, 356, 360): in a national emergency the federal structure converts into a unitary one; Parliament can legislate on State subjects (Article 250). Article 356 (President's Rule) is constrained by S.R. Bommai v Union of India (1994).

• Other unitary features: single citizenship, integrated judiciary, All-India Services (Article 312), Governors appointed by the President (Article 155), Parliament's power to legislate on a State List subject in the national interest (Article 249, by a two-thirds Rajya Sabha resolution), a single Election Commission, the CAG, and the financial dependence of States on the Centre.

• Cooperative and fiscal federalism institutions: Inter-State Council (Article 263), Finance Commission (Article 280), GST Council (Article 279A, 101st Amendment, 2016), Zonal Councils (States Reorganisation Act, 1956), NITI Aayog (replaced the Planning Commission in 2015), inter-State water disputes (Article 262), and inter-State trade (Articles 301–307).

• Amendment (Article 368): most amendments are by Parliament alone; those affecting federal features (Seventh Schedule, representation of States in Parliament, Article 368 itself, election of the President, provisions on the Supreme Court and High Courts, and so on) need ratification by at least half of the State legislatures.

• Rajya Sabha is a Council of States with representation roughly proportional to population (not equal, unlike the US Senate).

Key Cases and Commissions

• State of West Bengal v Union of India (1962): the Constitution is not truly federal; States are not sovereign; the Union is dominant (federal in structure but unitary in essence).

• S.R. Bommai v Union of India (1994): federalism is a basic feature; Article 356 is subject to judicial review; Parliament must approve the Proclamation within two months.

• Kesavananda Bharati v State of Kerala (1973): federal character recognised as part of the basic structure.

• State of Rajasthan v Union of India (1977): upheld dismissal of State governments by the Centre in specific circumstances (later restricted by Bommai).

• Government of NCT of Delhi v Union of India (2018 and 2023): Constitution Benches emphasised cooperative federalism; in 2023 the Court held that the elected Delhi government controls "services" other than police, public order and land. Parliament then enacted the Government of NCT of Delhi (Amendment) Act, 2023, which was challenged.

• Mineral Area Development Authority v Steel Authority of India (2024): a nine-judge Bench held that States have the power to tax mineral rights (Entry 50 of the State List), subject to limits Parliament may impose under Entry 54 of the Union List. Considered a pro-State ruling.

• Sarkaria Commission (1983–88): on Centre–State relations; recommended sparing use of Article 356, a permanent Inter-State Council, and norms for appointing Governors.

• M.M. Punchhi Commission (2007–10): also advocated sparing use of Article 356 and guidelines for Governors; stressed cooperative federalism.

• Rajamannar Committee (Tamil Nadu, 1969) and the Anandpur Sahib Resolution (1973) sought greater State autonomy.

Characterisations of Indian Federalism

• Quasi-federal – K.C. Wheare.

• Federation with a centralising tendency – Ivor Jennings.

• Cooperative federalism – Granville Austin.

• Bargaining federalism – Morris-Jones.

• Asymmetrical federalism – special provisions for certain States (Articles 371 to 371J) and the earlier special status of Jammu and Kashmir (Article 370 was abrogated in 2019 and the abrogation upheld in In Re Article 370, 2023).

• Federal in structure, unitary in spirit – the standard exam phrase.