Law and You > Constitutional Law > Federalism in Australia, Canada, the US and India
The word ‘Federation’ has been derived from the Latin word foedus, which means treaty, contract or compact. Thus, a federal state is seen as a compact or association of states/provinces due to an agreement or treaty. It is an arrangement by which many relatively autonomous parts come together to make a whole. Federalism is a political system through which two or more governments have shared authority over the same geographical area. Most democratic countries in the world are governed by a federal system, including India, US, Australia, Argentina, and Canada. The members of the “upper houses” in the federation are not appointed or elected but are delegates of the respective governments. In this article, we shall do a comparative study of federalism in Australia, Canada, the US, and India.
Federalism in Australia:
Australian federalism came into existence on 1st January 1901, with six British colonies as its constituents. However, deliberations about the establishment of a federation in Australia started in the mid-Nineteenth century. Economic considerations were leading factors. Security concerns had a minor role in the making of the Australian federalism. In Australian federalism, the province is called ‘State’, while the national government is known as the ‘Commonwealth of Australia’.
Features of Australian Federalism:
Written and Rigid Constitution:
Both the Commonwealth and states derive their powers directly from the Constitution. Australian constitution is a rigid Constitution. To make a change in a constitution is very difficult. The constitutional amendment requires the majority of voters‘ support at the national level in a referendum and the majority of voters’ support at least four out of the six states. As a consequence of the complex amendment procedure, only eight out of thirty-six proposed constitutional amendments could be passed in the referendum till now. The rigidity of the constitution provides a de facto guarantee to states and the Commonwealth that their respective rights cannot be violated unilaterally.
Division of power:
Section 51 of the Australian Constitution states that the jurisdiction to make law on the listed issues rests with the Australian Commonwealth. Forty subjects have been listed or reserved for the Commonwealth. These include defence and external affairs; overseas trade and commerce; immigration; trade; currency, and social functions such as marriage and matrimonial causes. The rest or unlisted subjects, formally known as residual powers, rest with the states. The states have exclusive rights to make laws on the residual subjects.
In addition to the listed and residual powers, the concurrent list identifies subjects over which both the Commonwealth and states can legislate. However, in case of inconsistency between the Commonwealth and state laws, the Commonwealth laws will prevail over the state laws.
Bicameral Legislature:
Australian Parliament is made of the Crown and two chambers, namely, the Senate and the House of Representatives. The Senate is made of 76 senators, while the House of Representatives has 151 members. The states are represented in the Senate. For representation in the Senate, the principle of equality is followed. Each state, irrespective of its population and territory size, has been allotted equal twelve seats in the Senate. The mainland territories the Australian Capital Territory and the Northern Territory- send two senators each. Of the twelve members elected from every state through the proportional representation system for six years. The 151 members of the House of Representatives are elected for three years terms by the preferential voting system.
Dispute Settlement Mechanism:
In the Australian federal system, the Courts and inter-governmental bodies play significant roles in resolving disputes between the states and national government or between states. The High Court is the highest court in Australia. It has played an essential role in sustaining federalism for over.
According to Section 77 of the Australian Constitution, the final court of appeal is in dispute between federal and state jurisdiction. It has the authority to interpret the Constitution. The inter-governmental Councils and Committees representing national and state governments such as Loan Councils, Premiers Conference, Special Premiers Conference, and Council of Australian Governments manage federal relations.
Federalism in Canada:
The British North America Act, 1867, passed by the British Parliament, established a Dominion of Canada as a self-governing part of the British Empire. It introduced federalism in Canada by bringing together the Provinces of Upper and Lower Canada, Nova Scotia, and New Brunswick together in one federal union. Other provinces joined the Dominion later. The Canadian federation comprises four regions: Ontario, Western Provinces, Quebec, and the Maritime Provinces. In addition to regions, North-west territories and Yukon are also parts of Canadian federalism. The Canada Act 1982 has further strengthened federalism in Canada.
Features of Canadian Federalism:
Written and Rigid Constitution:
The 1867 Act had no formula to amend the constitution. In 1949, the Canadian Parliament was given the power to amend some parts of the constitution. According to the Canada Act, 1982, the Canadian constitution can be amended in five ways:
- provisions affecting the federal government can be amended by the federal Parliament.
- provinces have exclusive power to amend the constitution of the province.
- few amendments also require the approval of two-thirds of provinces, containing the majority of the population. It is also referred to as the 7/50 procedure.
- other amendments require the federal consent and the approval of all states (Section 41).
- Parliament’s amendment affecting only one or more, but not all states, requires approval from the concerned state only.
Thus, the amendment process of the Canadian constitution affecting federal structure can be regarded as rigid.
Bicameral Legislature:
Canada’s federal legislature called Parliament is bicameral. It consists of the Queen and two chambers, namely the Senate (the upper chamber) and the House of Commons (the lower chamber). The Senate represents the provinces. Initially, the Senate had 71 members. However, presently it has 104 members. The membership can be expanded up to 118. Out of 104, four regions of the Canadian federation, namely Ontario, Western Provinces, Quebec and the Maritime Provinces, send twenty-four representatives each to the Senate. Two Senators represent each of the North-west Territories and Yukon. As per the Constitution of 1867, the House of Commons was a 181 membered chamber. Nevertheless, now the membership of the house has been extended up to 282.
Division of Powers:
There is an explicit system of division of power in Canada. The Constitution Act, 1867, is the primary source of division of powers in Canadian federation. Under sections 91 and 92(10) of the Constitution, the federal government has the power to make laws on items of ‘national’ interest such as national defence, foreign affairs, employment insurance, banking, federal taxes, the post offices, fisheries, shipping, railways, telephones and pipelines, Indigenous lands and rights, and criminal law. Under sections 92, 92(A) and 93, the provincial governments can make laws on ‘local’ items like direct taxes, hospitals, prisons, education, marriage, property and civil rights.
In the Concurrent list, the Canadian constitution enumerates items like agriculture, old-age pensions, and immigration. In case of inconsistency, under section 95, the federal law will prevail on agriculture and immigration, while under section 94A, provincial laws will prevail in the case of the old-age pension. The residual powers rest with the federal Parliament.
Dispute Settlement Mechanism:
Before 1949, the power to interpret the constitution was vested with the Judicial Committee of the Privy Council. Since then, the interpretive power has been handed over to the Supreme Court of Canada. The Supreme Court seems to favour the strong federal government.
Two Tiers of Government:
Like other federal states, Canada has two levels of government called federal and provincial. The Lieutenant-Governor acts as Crown’s representative. If Prime Minister functions as the head of the government at the federal level, the Premiers exercise the executive powers at the province level. In provinces, there also exists a cabinet and ministers. Like the federal government, states have their legislature, executive and judiciary. Initially, the legislature of the four provinces was bicameral. At present, they are single-chambered and elected by people. The size of the provincial legislature varies as Prince Edward Island has only twenty-seven membered legislature while Quebec has 125 membered legislature.
Federalism in the US:
Under American federalism, power and sovereignty are constitutionally divided between the states and the federal government. American federalism gives more powers to the states than most other federal systems. This is evident because 3/4 of states need to agree to any constitutional amendments, states have equal representation in the Senate, and the 10th amendment gives states broad powers (any powers not explicitly given to the federal government belong to the states).
Features of the US Federalism:
Written and Rigid Constitution:
The Constitution of the US is a written Constitution written in 1787, which provides for a federal political structure where both the governments exercise their respective powers. The US Constitution is very rigid and more formal. The US Constitution has been amended only 27 times.
Bicameral Legislature:
The upper and the lower houses of US legislature are called as the House of Senate and the House of Representatives respectively. In the US, the President is the head of the state and so his government is popularly referred as the Presidential form of government. The President of US holds office for a period of four years. The US follows the bi-party system and has a complicated process of election. In the US, all provinces, irrespective of their size and population, are given equal seats in the Senate.
Divisions of Power:
Article I, Section 8 of the Constitution describes specific powers which belong to the federal government. These powers are referred to as enumerated powers. The Tenth Amendment reserves powers to the states, as long as those powers are not delegated to the federal government. Among other powers, this includes creating school systems, overseeing state courts, creating public safety systems, managing business and trade within the state, and managing local government. These powers are referred to as reserved powers.
Concurrent powers refer to powers that are shared by both the federal government and state governments. This includes the power to tax, build roads, and create lower courts.
Article VI of the U.S. Constitution contains the Supremacy Clause, which reads, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” This effectively means that when the laws of the federal government are in conflict with the laws of a state’s government, the federal law will supersede the state law.
Dispute Settling Mechanism:
The interpretation of laws, as set forth by the US Constitution, falls on the Supreme Court of the United States.
Federalism in India:
The Constitution originally provided for a two-tier system of government, the Union Government or what we call the Central Government, representing the Union of India and the State governments. Later, the third tier of federalism was added in the form of Panchayats and Municipalities. The Parliament cannot on its own change this arrangement. Any change to it has to be first passed by both the Houses of Parliament with at least two-thirds majority. Then it has to be ratified by the legislatures of at least half of the total States.
In case of any dispute about the division of powers, the High Courts and the Supreme Court make a decision.
Features of Indian Federalism:
Written Rigid Constitution:
The Indian constitution adopted in 1950 had twenty-two chapters, 395 Articles and eight schedules. It is the source of states and central government‘s powers and authorities. The Indian constitution is a blend of rigidity and flexibility. In comparison to the constitutions of the USA and Australia, the Indian constitution is flexible. However, on issues related to centre-state relations, the constitution is rigid. Any constitutional amendment affecting centre-state relations such as the division of powers and state‘s representation in the Parliament requires a majority of the total membership of the house and a majority of not less than two-thirds of the members of the house present and voting. The amendment also requires to be ratified by fifty per cent of state legislatures.
Distribution of Power:
There are two Governments one at the central or Union or federal or national level (Federal Government) and the Government of each state. The Constitution clearly provided a threefold distribution of legislative powers between the Union Government and the State Governments. Thus, it contains three lists: Union List, State List and Concurrent List.
- The Union List This list contains 97 subjects. Parliament has exclusive power to make laws with respect to any of these subjects. It includes subjects of national importance such as defence of the country, foreign affairs, banking, communications, and currency.
- The State List contains 66 subjects. The legislative of any State has exclusive power to make laws with respect to any of these subjects. It includes subjects of State and local importance such as police, trade, commerce, agriculture, and irrigation. The State Governments alone can make laws relating to the subjects mentioned in the State List.
- The Concurrent List contains 47 subjects. Parliament and legislature of any State both have the power to make laws with respect to any of these subjects. It includes subjects of common interest to both the Union Government as well as the State Governments, such as education, forest, trade unions, marriage, adoption, and succession. Both the Union as well as the State Governments can make laws on the subjects mentioned in this list. If their laws conflict with each other, the law made by the Union Government will prevail.
- According to our constitution, the Union Government has the power to legislate on the ‘residuary’ subjects. Residuary subjects are those subjects which are not covered in the Union list or the State list.
Bicameral Legislature:
Indian legislature known as Parliament is bicameral. The two houses are Rajya Sabha, the upper house and Lok Sabha, the lower house. The Lok Sabha (People‘s Council) represents the people across the country. In contrast, the Rajya Sabha (Council of States) represents the states in the national legislature. Members of Lok Sabha are directly elected by the people, while, the members of the Rajya Sabha are elected by the state legislatures. The President nominates twelve members to Rajya Sabha for their contributions towards arts, literature, sciences, and social services. Seats are allotted in the upper house according to their population.
Dual Government:
In India, a central government and state governments exist, each having its political institutions and processes. They have a separate legislature, executive, and judiciary. The President is head of the Union of India, while the Governor is the constitutional head of states. If the supreme court is India’s highest judiciary, the High courts are the state’s highest judiciary. Establishing a distinct set of political institutions for central and state governments has resulted in establishing two tiers of government in Indian Federation.
Dispute Ressolution:
The constitution provides for an independent judiciary, having the power of the judicial review. At the same time, the constitution attempts at the reconciliation of the principle of judicial review and the parliamentary supremacy. In case of the dispute between the Union and a State or among the States, the Supreme Court settles it by the interpretation of the statute and constitution. The court can declare any action on the part of the Government ultra vires if such action violates the Constitution.
Conclusion:
Federalism is a system of government in which the power is divided between a central authority and various constituent units of the country. Usually, a federation has two levels of government. One is the government for the entire country that is usually responsible for a few subjects of common national interest. The others are governments at the level of provinces or states that look after much of the day-to-day administering of their state or province. Both these levels of governments enjoy their power independent of the other and share authority over the same geographical area. Division of powers, Bicameral legislature, Two-tier system of governance, rigidity of constitution and dispute resolution system are defining characteristics of federalism.
Different countries adopted different systems of federal systems depending upon the requirements and aspirations of their citizens.