Federalism in India in Comparative Perspective with Special Reference to Canada
Since 1787, federalism has emerged as a form of government in modern world. It can be said that the emergence of federalism is basically an output of American freedom struggle against the British colonial power. Therefore, undoubtedly, the country like America is a founder of such types of federalism in the contemporary global society. As distinguished political scientist Herman Finer defined, 'federalism is of extreme modernity, its theory and practice in the modern states are not older than American federation which came into existence in 1787’. Thereafter, gradually in the whole world, different countries adopted a federal form of government according to their needs and the circumstances. India has also adopted a federal form of government at the very beginning of the Republic with Parliamentary features. The parliamentary federal structure of the government of India predominantly started its career as a parliamentary system over-shadowing the federal features on account of one-party dominant system under the aegis of the Indian National Congress. However, with the gradual transformation of the one-party dominant system into a multi-party system with coalition governments, the predominantly parliamentary tenor of politics in India gradually slide into a more federalized system with some degree of regional segmentation and differentiated patches of religion, caste and subaltern mobilizations.1
Canadian people had also fought against the British and the French Colonial powers for Independence. After independence in 1867 they adopted a federal form of government. The Constitutional Act of 1867 created a political structure based on principles of Parliamentary Sovereignty and Federalism with a predominant centre. This is a highly centralized federal structure which ensures substantial degree of autonomy to linguistic, religious, cultural and ethnic diversities.2 The Constitutional Act 1982 has a importance in the Canadian federal system.
Federalism is the theory of federal political order, where final authority is divided between Centre and States. Federal systems do this by distributing power among general and constituent governments, in a manner to protect the existence and authority of all the governments. In some federal systems, the allocation of authority between the centre and state may vary, typically, the centre has powers regarding defence and foreign policy, but state may also have international roles.3 The state may also participate in central decision-making body and decision-executing processes. Much recent philosophical attention is spurred by renewed political interest in federalism, coupled with empirical findings concerning the requisite and legitimate basis for stability and trust among citizens among federations. Philosophical contributions have addressed the dilemmas and opportunities facing Canada, Australia and Europe to maintain just a few areas where federal arrangements is seen as interesting solutions to accommodating differences among populations divided by ethnic or cultural cleavages yet seeking a common political order. Therefore, federalism and its typical terms like ‘federal’ is used, most broadly, to describe the mode of political organization, which unites separate polities within an overarching political system to allow each to maintain its fundamental political integrity.
Meaning and Definitions
Not a single definition of federalism has proved satisfactory to the scholars, especially concerning Political Science, primarily, because of difficulties in relating theoretical formulations to the evidence gathered from observing the actual operation of federal systems. Attempts at definition have also founded on the problems of distinguishing between: first, federal principal as a broad social concept and federalism as a narrower political device; second, two classics but different conceptions of federalism; third, authentic federal systems and political systems, which utilize elements of the federal principales; and fourth, mature ‘inter-governmental relations’ as distinct political phenomenon.4
Despite these above mentioned difficulties, federalism is illustrated by some specific definitions. In H. Finer's view, ‘A federal state is one in which a part of authority and power is vested in the locale area, while another part is vested in a central institution deliberately constituted by an association of the areas’. Distinguished Political Scientist Jean Blondel defined, ‘In order to optimize the two pre-requisites of decentralization and national unity, rule-making authorities should be divided into two sets of authorities, which are independent of each other within their own sphere’. In the view of A. V. Diecy, ‘A federal state is nothing, but a political contrivance intended to reconcile national unity with the maintenance of state rights’. Eminent Montesquieu argues, ‘Federal government is a convention by which several similar states agree to become members of a large one’.
General Features of Federalism
- Two levels of government created and protected by the Constitution, with sovereignty stemming neither from above nor from below, but distributed between the two, in some fashion by the Constitution.
- The two levels of the government are not entirely subordinated to each other. Each has powers, and these are guaranteed by the Constitution.
- Supremacy rests in the Constitution. Formal changes in the relative position, or powers, of each level of government cannot be achieved by one level alone, but are subjected to some form of mutual consent. The method for effecting such changes (amendments) is outlined in the Constitution.
- Both the levels of the government enact legislation affecting the same citizens; the central government enact laws in certain fields for the whole (or possibly part) of the country; the provincial government enacts legislation on other subjects for the residents of their respective provinces.
- The legislation of the provincial government can only apply to the people of their own province. Provincial law does not have the power of extra-territoriality.
- Federal Constitution must, at least partly, be written so that the allocation of fields of jurisdiction is made clear and guaranteed. Such constitutions are also said to be rigid since, for the most part, it would require more than a simple majority of the legislatures to change it.
- A Supreme or Constitutional Court formally decides upon jurisdictional disputes between the two levels of the government. Such a court finds its existence guaranteed in the Constitution. Ordinarily, such a court is also beyond the control of any one level of the government.
- Each level of the government is allocated a list of fields of jurisdiction and given autonomous revenue resources to finance its operations. A government without revenues of its own would not really be a sovereign entity.
- Each of the two levels of the government has substantially complete governing institutions with power to modify these unilaterally.
- Through the existence of the central government, some federations such as Canada have developed an elaborate system through which the wealthy regions substantially contribute in support of the less fortunate parts of the country. In Canada's case, this is done through the equalization of payments and costs of programmers.5
Federal Features of the Indian Constitution
According to D. D. Basu, the constitutional system of India is basically federal, but with unitary features. It has all the essential features of a federal system:
- Dual Government: While in a unitary State, there is only one Government, namely the national Government; in a federal State, there are two Governments-the national or federal Government and the Government of each component State.
Though a unitary State may create local sub-divisions wherein such local authorities enjoy autonomy of their own and exercise only such powers as are from time to time delegated to them by the national government, it is competent for the national Government to revoke the delegated powers or any of them at its will.
A federal State, on the other hand, is the fusion of several States into a single State in regard to matters affecting common interests, while each component of State enjoys autonomy in regard to other matters. The component States are not mere delegates or agents of the federal government, but both the Federal and State governments draw their authority from the same source, i.e. the Constitution of the land. On the other hand, a component State has no right to secede from the federation at its will. This distinguishes a federation from a confederation.
- Distribution of Power: It follows that the very objective for which a federal State is formed involves a division of authority between the federal Government and the States, though the method of distribution may not be alike in the federal Constitutions.
- Supremacy of the Constitution: A federal State derives its existence from the Constitution, just as a corporation derives its existence from the grant of a statute by which it is created. Every power-executive, legislative or judicial, whether it belongs to the federation or to the component states, is subordinate to and controlled by the Constitution.
- Authority of Courts: In a federal State, the legal supremacy of the Constitution is essential to the existence of the federal system. It is essential to the existence of the federal system. It is essential to maintain the division of powers not only between the coordinate branches of the government, but also between the Federal Government and the State themselves. This is secured by vesting in the courts-a final power to interpret the Constitution and nullify any action on the part of the Federal and State Governments or their different organs which violates the provisions of the Constitution.
The Indian Constitution possesses all these essential features of a federal polity. Thus, the Constitution is the supreme organic law of our land, and both, the Union and the State Governments as well as their respective organs derive their authority from the Constitution, and it is not component for the States to secede from the Union. There is a division of administrative powers between the Union and the State Governments, and the Supreme Court stands at the head of our Judiciary to jealously guard this distribution of powers and to invalidate any action that violates the limitations imposed by the Constitution. This jurisdiction of the Supreme Court may be resorted to not only by a violation of the constitutional distribution of powers, but also by the Union and States themselves by bringing a direct action against each other, before the Original Jurisdiction of the Supreme Court under Art. 131. It is because of these federal features that our Supreme Court has described the Constitution as federal.
Federal Features of the Canadian Constitution
The main features of the Canadian federalism can be illustrated through the following basic provisions:
- Written Constitution of 1867: Like India, the Canada also has a basic Constitutional document, which defines the powers and functions of the union as well as of the states. Although the Constitution of India is the lengthiest written Constitution, the Canadian Constitution altogether clearly specifies division of powers: an impartial judicial agency in the form of the Supreme Court and a charter of rights, if the 1867 and 1982, both the Constitutional Act are to be taken together. Due to the diversity of the Canadian society on the basis of language, religion, culture and ethnicity etc; the Constitution Act of 1867 established a federation that was highly centralized. On the basis of imposing taxes and its collection and making legislation, the federal government has been enjoying more powers than provinces. Thereafter, it can also be seen that the federal government has, given the ability under certain circumstances, to overrule upon the provincially enacted legislation.
- Dual Government: In India, powers are divided not merely between the union and states, but also shared with local self governments also through the 73rd and 74th Constitutional Amendments Acts, i.e. is the soul of the Indian federation. But in Canada, there are merely two levels of government, one federal and other provincial. At the federal level, the Governor General is the head of executive, but at the provincial level, the executive is split between a premier and a Lieutenant-Governor. However, the provincial legislatures are no longer bicameral–they have all abolished their Senates. But in India, till date, six states still have bicameral legislatures. Due to the democratic nature of state, the Canadian federal system enables citizens to participate in collective activities and to pursue goals at both the provincial and federal levels. Within limits of the jurisdiction, the constitution allows Canadians to achieve their goals on a national scale through federal government.
- Parliamentary System: Both Canada and India have Parliamentary federal form of government. In fact, despite the federal character of state, Canada also has a Parliamentary system, like India and the UK; rather than a presidential system of USA. That's why, all executive functions are divided between a formal executive, the Governor-General and a political executive, the Prime Minister and his Cabinet.
In the Presidential form of government as in USA, the President acts as the Chief of State, Head of Government and leader of ruling political party. But in Canadian Parliamentary federal system, the Prime Minister is not the chief of state (as in India); the Governor-General acts like the chief of state and executive. Two types of executive are there: Formal Executive (the Crown) and the Governor General. The Crown is the chief of the formal executive power; therefore, monarchical form of government is there in formal sense.6 Theoretically, the Governor General exercises all of the rights and privileges of the Queen through the Prime Minister and his Cabinet. Similar to the Indian President, the Governor-General in Canada is also like a rubber stamp, working on the advice of the existing government.7
- Residuary and Concurrent Powers: In most of the well established federal states, residuary powers are used by the states or provinces, for example, the federal state like USA, Australia, Switzerland etc. But in Indian and Canadian federalism, the residuary powers are used by the federal or Union government, due to the different socio-economic-political circumstances.
Concurrent jurisdiction is purely a shared jurisdiction. It is an invention of the Australian federation. In this jurisdiction, both levels of government may legislate, for example, in the Canadian case, under section 95, both the national and provincial governments may regulate with respect to agriculture and immigration. A provision of ‘supremacy clause’ exists in the Constitution of Canada. In case of the emergence of any contradiction between the central and the provincial laws (as in India), supremacy is vested in the Parliament concerning the concurrent jurisdiction.
- The Supreme Court of Canada: As in India, in Canada also, the Supreme Court acts as the guardian of the Constitution. In India, the Supreme Court along with the High Court acts as the Interpreter of the Constitution and ultimately the Supreme Court is the final Interpreter. Both countries have a single judiciary. That's why, the Supreme Court has the power to supervise and control the functioning of the entire judicial system. According to the Constitution, the powers concerning the appointment, removal or service conditions of judges are directly under the jurisdiction of federal/union government, and provinces have nothing to say in this regard. In Canada, the Parliament has the power to appoint all provincial judges from the district level to all the way up to the appellate level. The Parliament is also responsible for judicial salaries, allowances and pensions. In India, the judges of either High Courts or the Supreme Court are appointed by the President and can be removed by them alone after legal impeachment passed by the Parliament.
- The Declaratory Powers: In the Canadian Political System, the declaratory powers are vested in the federal government, which ensures the dominance of federal government over the provinces. Through this power, the Parliament of Canada can usurp provincial power. If it feels that such an action is ‘for the general advantage of Canada or for the advantage of two or more of the provinces’. Right now, besides India, Canada is the only federal state in the world, which has such a power. More or less, the same scenario obtains India under Article 356 of the Constitution. Under this Article, the central government can take over the administration of a state, if the Governor of the concerned state has sent an adverse report (failure of the Constitutional rules). Besides Article 356, under Article 249 (subject concerning national importance) and Article 252 (after the recommendation of two or more states) centre can legislate on the state subjects i.e. clearly demarcated by the Indian Constitution. Albeit in Canada, the use of the declaratory power is very rare. The year of 1961 is a witness in this regard.
The Phases of Federalism in India and Canada
Till now, studies related to federalism have brought out that there is no single pattern of federalism, which is continuous or stable. Power in the federal form of government is always shifting from one institution to another. In this scenario, it is necessary to do the comprehensive study of federalism, on the basis of different phases, particularly in India and Canada. The study related to Indian Federalism and its dynamics may be divided into different phases.
Under the multi-party democratic system of India, Congress played a dominant role during the period 1947–1967 due to its electoral base-spread across the Indian territory. Not only was the central government was working under the absolute majority of the Congress party, but this was the case in all Indian states also, except Kerala in 1957, where the CPI Ministry was in power. That was an era of extreme centralization, because soon after Independence, the unity and integrity of the nation was a big challenge, and it was the responsibility of the ruling government to check centrifugal forces and pool resources for nation-building. Despite this, States were more or less satisfied due to the provision of the 7th schedule of the Constitution, which defines the powers of the both level of governments through Central, State and Concurrent lists. The year of 1956 was very important due to the reorganization of states on linguistic basis, and the out-come was Andhra Pradesh. In spite of such reorganization, the national leadership was sensitive about the unity and integrity of the nation. That's why they were in favour of a strong centre so as to have no scope for secessionist or separatist movements. During this phase, the 3rd, 5th, 7th, 13th and 22nd Constitutional amendments directly affected the federal structure in favour of the centre. Therefore, this phase was indicative of the centralizing tendency of Indian federalism.
The decade of the 1950s had witnessed the implementation of a planning model with comprehensive five years plan aimed at fostering development. But within 10–15 years of their implementation, the government machinery was not even able to sustain the growth rate. Thus, the mid 1960s witnessed the failure of planning to remove both individual and community disparities. The reality was that the Nehrubian-Mahalonobis model of development was unable to achieve a balance between growth and its distribution and participation. More or less, the causes were the semi-feudal nature of Indian society and the nexus between the administrative and political elite. The effect of the India China war (1962) and Indo-Pakistan war (1965) was also a major cause. In this scenario, the masses were dissatisfied and as a result in 1967, the Congress was defeated at least in eight states. That defeat of the Congress in a majority of the states was a symbol of the changing nature of Indian federalism. The rise and growth of regional parties with regional bosses accentuated such a trend.
Phase II: Under Indira Gandhi Administration (1967–1977)
On the political front, several marked changes affected Centre-State relations under a weaker/less dominant Congress Party. On the economic and social fronts, the nation was struggling. This phase was marked by enormous economic crisis in the country, growing unemployment, inflation and labour disputes; which was partly due to the economic strains of the China and Pakistan war respectively and partly due to the failure of the five year plans in ensuring an equitable distribution of resources and benefits.
Due to the emerging strength and continuous presence of locally dominant classes, regionalization of the Indian Political System was on the rise. In some regions, local bosses emerged strongly, and they posed a serious threat to the Congress even at the Central level. In fact, the afore-mentioned situations were the result of the emergence of new regional industrial bourgeoisie and the rich farmers in particular states, where the green revolution had been successful. Thereafter, they wanted to consolidate their influential position, and they did not want to give a space to any type of dominance.
Phase III: Under the Prime Ministership of Murarji Desai, Chaudhuri Charan Singh, Indira Gandhi and Rajiv Gandhi (1977–1989)
In the year of 1977, the Janata Party, which was a combination of many parties and groups, came into power on the epitaph of an emergency. This combination started with stress and strain among the partners of this coalition, immediately after government formation. In the first phase, President's rule was declared in nine Congress-ruled States. Perhaps, this decision was an answer to the working style of Indira Congress that had been highly centralized. However, the Janata Party could not stay for long to establish any convention or traditions. Because of internal factionalism, the Janata government proved very short-lived, and was soon replaced by the Congress in 1980.8
In the decade of the 1980s, again the central power was in the hand of Congress Party, and the leader was Indira Gandhi. Indira II regime was very popular for the imposition of Chief Ministers from above. Then, the States merely acted like Municipalities. After Indira Gandhi's assassination, her son, Rajiv Gandhi was directly imposed as Prime Minister. During Rajiv Gandhi's regime the Centre-State relations entered a new phase. Initiatives were taken by him from 1987, when he began to address District Magistrates and Collectors in almost all regions. Rajiv Gandhi talked directly to district authorities by-passing even the Chief Ministers. This was followed by a series of announcements concerning Panchayati Raj, speeding up elections to locale bodies and constantly emphasizing the virtues of ‘decentralization’, but at the same time launching attacks on the State Governments.9
This phase also witnessed a wide variety of regional movements particularly in Punjab and North East and growing demands for greater state autonomy such as under Telugu Desam Party in Andhra Pradesh and under the Janata Party in Karnataka. These situations were needed a satisfactory solution, especially, in the balance of power between the union and the states. In this context, the ruling Congress government constituted a commission for the study of the entire range of centre-state relations to recommend suggestions for improvement. The Commission popularly known as Sarkaria Commission included two members B. Shivaraman and S. R. Sen. Ultimately, we can say that after the authoritarian interlude of 1975–77, which in both law and fact, reduced India's federal system to pretty much a unitary state, the system reverted to the earlier stage of tenuous cooperation between the centre and states.10
Phase IV: Multi-Party Coalition (1989)
With the prolonged period of coalition government at the centre, this phase in the federalization of Indian politics began at the end of the 1980s. Regional parties like DMK of Tamil Nadu and RJD of Bihar, have asserted their interests more openly over the past one-and-a-half decades of coalition and minority governments. After the declaration of 1989 election results the National Front government headed by V. P. Singh came to power. This government set up the Inter-State Council (ISC) and rejuvenated the National Development Council (NDC). This government also could not do more. They could not devote much time for large-scale reforms in the federal process. In fact under the Prime Ministership of Narasimha Rao, the Congress government continued with true idea of the predominance of the centre, right to intervene in the state's affairs and misuse of the office of Governor and power to impose President's rule.11
Since the 1996 elections, the regional parties have not only gained power in several states, but have also joined the union government. Therefore, the federal structure and its working are likely to be strengthened. Due to the coalition politics at all levels, by and large, centre-state issues are resolved on the basis of pre/post electoral alliance. The verdict of the recent elections indicated that the days of one-party dominance are over, and in future, state politics will decide the temperature of national politics. The poll results seem to have shown India to be a far more federal nation than before. Since the 1990s, the Indian political system has significantly moved towards greater federalization as first highlighted by Prof. M. P. Singh. Indeed, Douglas Verney has now gone to the extent of pointing out that the transformation of the Indian party system to a regionalized multi-partisan configuration has encouraged the transition of the political system from ‘quasi-federation’ to ‘quasi-confederacy’.12
The Phases of Canadian Federalism
Till now, Canadian federalism has fluctuated between the extremes of centralization and decentralization in response to socio-economic and political conditions. According to the historical study of Howard Cody, since 1867, Canadian federalism has evolved through following phases:13
Phase I: Confederation Era (1867–1883)
The Canadian federation evolved firstly as a Confederation during 1867–1883. According to the need of time and circumstances, the architects of the Canadian federalism had tried to establish a strong central government with sweeping jurisdiction. With limited jurisdiction, the provinces were in a subordinate position in the federation. In fact, the constituent body of ‘Confederation Agreement’ did not intend Canada to be a centralized federation, and that is the direction in which it grew during the first two decades of its formation. The above mentioned facts indicate towards the confederal era.
Phase II: Dual-federation Era (1884–1910)
During this period, the nature of the Canadian federation was more or less dual. In this phase, the Judicial Committee of the Privy Council (JCPC) played a very important role in the growth of the provinces’ power. In jurisdictional disputes referred to the JCPC, there was a constituent pattern of interpretation favouring provincial rights. Provincial leaders like Sir Oiver Mowet and Honore Mercier challenged the dominance of the central government. Thus, provincial control over natural resources facilitated the development of largely self-contained provincial economies, and concentration of secondary manufacturing in Ontario made its government particularly important and influential. The disharmonious relationship between two Canadian groups, the Francophones and Anglophones undermined Macdonald's conservative party, and gave a setup to the anti-centric sentiment in Quebec. This period of decentralized or peripherlized federalism, lasting into early 20th century, has been denounced by Garth Stevension.14
Phase III: Cooperative Federalism Era (1911–1960)
During this era, the policy of centralization revived temporarily. In the year 1917, the central government levied an income tax for the first time, imposed military conscription and exercised an unprecedented control over the economy, with the introduction of the ‘conditional grants’ to the provinces to meet the demands for social services. The federal-provincial relations were primarily concerned with social programs, and did not involve residual conflicts. Consequently, bureaucracy at both the levels of government dominated inter-governmental relations, resolving problems before they reached the political agenda. This cooperative approach to the resolution of conflict, contrasted with the judicial approach, was more effective in resolving certain disputes, specifically concerning the fiscal matters.15
Phase IV: Competitive Federation Era (1961–1980)
A competitive tendency emerged in 1961 and remained till 1980. In this regard, the recommendation of the Royal Commission (popularly known as Rowell-Sirois Commission) for the betterment of Dominion-Provincial relations was a milestone. The commission came out strongly against the conditional grant procedure. The current situation is indicative of the equalization of the financial resources of the provinces. Different types of demands were there in states like Ottawa, Quebec and Montreal. During 1960–1980, these circumstances led to a substantial increase in the provincial share of taxation and public expenditure. In the 1960s, provincial governments began to intervene more aggressively in provincial economies, and also challenged the right of the central government to make economic policy without their collaboration or consent. Provincial relations with other nations also became significant, particularly in case of Quebec, whose nationalist movement was encouraged by President Charles de Gaulle of France. Robinson and Simeon have named this phase as Competitive Federalism due to the escalation of inter-regional and inter-governmental conflict, strong pressures for decentralization, expansion by both levels of government into new policy fields in a form of ‘Competitive expansionism’ or ‘province building versus nation-building’, and increasing efforts by both levels of government to mobilize their populations around competing images of federalism.16
Phase V: Constitutional Federalism (1980–1990)
A constitutional tendency has been observed from 1980–1990. During this period, the Canadian federalism was working under the umbrella of Constitutionalism. Through Constitutional amendment, Quebec had got a prime position in Canadian politics, because it had guaranteed a representation on the Supreme Court of Canada. But in the rest of Canada, many groups rejected the asymmetry format of Quebec, indicating its special status. Moreover, the constitutional agenda called for ‘Triple E-Senate’–equal, elected and effective, which would introduce intra-state federalism; and the Aboriginal peoples called for constitutional recognition of the right to self-government. After that, a Parliamentary Committee called the Spicer Commission was constituted to re-examine the amending formula. The Commission recommended a set of reform proposals in September 1991, suggested parliamentary hearings; a series of five national conferences; and re-convened the federal-provincial dialogue process. Ultimately, Constitutional federalism focused primarily on the charter of Canada as a political community, the role of national and provincial governments and the ability of federalism to accommodate the emergence of new identities and interests.17
Phase VI: Functional Federalism (Since 1990s)
This particular tendency has emerged in the 1990s in Canada. Since this decade, similar circumstances could be seen in India also. The new economic changes, like changing global and North American economy, competition from newly industrialized nations, increased integration of financial markets etc., posed challenges for federalism. On the one hand, the political constitution was decentralizing the nation; while on the other an ‘economic constitution’ was being constituted with the Canada–US Free Trade Agreement (FTA) and its successor the North American Free Trade Agreement (NAFTA), which had profound implications for the role and power of governments and future of the Canadian political economy. The recent economic environment also raised questions about the relative responsibilities of the two levels of government. For example, labour force training and education became a central focus for promoting economic settlement. For the purpose of economic connectivity among the Canadian Provinces, there was a need of balanced trade that raised several questions. Right now, increasingly Canada's economic regions were becoming less linked as compared to other parts of the world. Finally, it can be said that the above mentioned developments suggest the need for a strong federal government but in a globalized economy. It is the provinces which are more adaptable and flexible in forging the links between business, government and labour necessary for economic success.
Indo-Canadian Federalism in Comparative Perspective
To maintain the unity and integrity of a diverse society, the federal form of government with federally written constitution was highly important. In this perspective, both Canada and India, have adopted the federal form of governance in the years of 1867 and 1950 respectively. As Michael Burgees argues, ‘lies in its infinite capacity to accommodate and reconcile the competing and sometimes conflicting array of diversities having political salience within a state. Tolerance, respect, compromise, bargaining and mutual recognition etc. are its watchwords and “union” combined simultaneously with “autonomy” its hallmark’. In the above mentioned circumstances, Indian and Canadian federalism have to be compared.
Indo-Canadian federal units must be analyzed through similarities and dissimilarities. In fact, many similarities have been seen apart from a common colonial past. They both are parliamentary and federal democracies with institutionalized Judicial Review on Constitutional matters. In India, schedule seven of the Constitution talks about the distribution of powers between the central government and federal units including a concurrent list that has followed from the Australia Constitution. With recently developed symptom, both the nations have developed on the basis of the distribution of powers between the central government and the federative units including locale self-government; legislative, executive and judiciary all milestone institutions are working separately under their constitutionally allotted spheres; a check and balance system is also working in the political process including a devolution of powers from the federal units to local bodies; strongly develop tendencies like fiscal federalism; role of the judicial review including Judicial Activism; the powers of the both chamber of the Parliament and the role of the central, regional parties and pressure groups.
On the eve of beginning of extreme coalition politics since 1989, like Canada, India has also gradually become more federal despite constitutional limitations. Emergence of regional parties including the transformation of the party system, rise and growth of regionalism for regional development and other issues, more politicization of the Indian society, activism of the Judiciary with instruments like PIL and the role of New Economic Policies (NEPs) since 1991 with the tools of Liberalization, Privatization and Globalization (LPG) etc., are the factors responsible for India's greater federalization.
Adoption and Growth of Parliamentary Federal System
On the basis of the adoption of the federal principal Canada was the second country in the world, but it is the first nation in the British Commonwealth to have combined parliamentary and federal principles of governance in 1867. Similarly, India was also the first nation in the Afro-Asian world to have adopted the same in 1950. According to Ronald L. Watts,18 both the political systems are called ‘Parliamentary Federal System’. Although, both are situated on opposite sides of the globe and at different levels of economic development; similar in social and regional disparities and diversities; the nature of the Constitution, spectrum of political ideologies and party system etc are more or less very similar.
Both the nations adopted their own Constitutions soon after independence i.e. similar in principle to the Westminster model prevalent in England with the proper modification of a federal component. Right now, federalism expended at least three orders of government at the Union, State and Local levels with shared and clearly demarcated jurisdiction. Actually, the current Indo-Canadian society is a problematic society, but initially both were less problematic. In the era of extreme globalization, federal-provincial relations in Canada and centre–state relations in India have become significant due to growing federalization or regionalization after World War II in Canada and since 1990s in India.
Today, both the plural and diverse societies are facing severe demands from constituent parts for greater autonomy. In 1964, K. C. Wheare, through his book, ‘Federal Government’, described both the political systems as quasi-federal. Within few years, he said, ‘the Canadian Constitution is quasi-federal, but the nature of the government is federal’. For India he said, ‘the nature of Constitution and the government both are clearly as quasi-federal’.
In Canadian federalism, a province like Quebec has a unique feature because French-speaking populations in Quebec are in a majority, while the other nine provinces are largely English-speaking. Within a few years of Independence, the government of India constituted a Commission under the Chairmanship of D. P. Dhar to recommending suggestions for State reorganization. Ultimately, India carried out a linguistic reorganization of states and Andhra Pradesh was the first state to be carved out.
In India, the Constitutional demarcation of jurisdiction of Union and State governments is carried out in three lists, namely Union, State and Concurrent. According to the Constitution, 97 subjects were in the Union list, 66 in the State list and 47 in the Concurrent list. In the last fifty years, the state list has lost some subjects to the Union and Concurrent lists. From 1950–2001, a total of 27 changes have been brought about by the Constitutional Amendments out of which 9 are in the Union list, 11 in the State list and 7 in the Concurrent list. Four out of 9 changes in the Union list have enlarged the executive, cultural and coercive powers of the Union vis-à-vis States. For example, the 6th Amendment of 1956 added a new tax to the Union list namely, on sale and purchase of goods other than newspapers of the scope of inter-state trade and commerce. Till now, state list has lost and others have gained. The Concurrent list has gained four new items through the 42nd Amendment Act 1976, namely, administration of justice in a state and formation of lower courts, forests, education, population control and family planning. All the above mentioned 27 Amendments were carried out during the Nehru-Gandhi regime, thirteen and fourteen respectively, and none in the Coalition regime.19 Article 200 of the Constitution grants the Union an executive power to intervene in the legislative process of states. A bill presented to the Governor for his assent may be reserved for consideration by the Union executive with its power to either approve it or disallow of it. There is exactly a similar provision in the Canadian Constitution, which over the years has become obsolescent under conventions of the Constitution. The Sarkaria Commission report is a milestone for the establishment of amicable centre-state relations. The Commission has recommended that normally the Governor must abide by the advice of the council of Ministers. In its views, the discretion of reservation of a state legislation by the Governor should be exercised in ‘rare and exceptional cases’ when such legislation is ‘patently unconstitutional’. The Commission also recommended that a state bill so reserved should be disposed of within four months from the date of its receipt.20
Under the Canadian Constitution, the federal Parliament has exclusive legislative authority in all matters relating to public debt and property, regulation of trade and commerce; raising of money by any mode of taxation, borrowing money on the public credit; postal service, census and statistics, militia, and naval service and defence; fixing and providing for salaries and allowances of the officers of the government; beacons, buoys and light house, navigation and shipping; quarantine and the establishment and maintenance of marine hospitals; sea-coast and inland fisheries; ferries on an international or inter-provincial frontier, currency and coinage; banking, incorporation of banks and paper money, savings banks, weights and measures, bills of exchange and promissory notes, interest, legal tender; bankruptcy and insolvency; patents of invention and discovery; copyrights, Indians and lands reserved for Indians; naturalization and aliens, marriage and divorce, the criminal law, except the Constitution of courts for criminal matters; the establishment, maintenance and management of penitentiaries; such classes of subjects as are expressly expected in the enumeration of the classes of subjects exclusively assigned to the legislatures of the province by the Act. Judicial interpretation and later amendment have, in certain cases, modified or clearly defined the respective powers of the federal government and provincial government.
Both the Parliament of Canada and the Legislatures of the Provinces may legislate with respect to agriculture and immigration, but provincial legislation shall have effect in and for the provinces, as long as and as far only as, it is not repugnant to any Act of the Parliament. The Parliament and the Provincial Legislatures may legislate with respect to old age pensions and supplementary benefits, but no federal law shall affect the operation of any present or future law of a province in relation to these matters.21
In the Indian federation, the executive powers of the Union and State governments are coterminous with their legislative jurisdictions. Article 53 of the Indian Constitution vests all executive power of the Union government in the President, and Article 154 vest all executive powers of State in the Governor. The Governor of a State in India has a delicate dual role-as the Constitutional head of the Provincial State and as the representative of the Union in the State Government. In his first role, he has to act as the custodian of the constitution to ensure that the State Ministry is responsible to the legislature. In his second role, acts as the eyes and ears of the President of the Indian Union to ensure that the governance of the State is carried out in accordance with the broader provisions of the Constitution of India. Till now, the appointment of Governor in India for different States has been burning issue due to its political nature. Often, the ruling party at the Centre has not followed the guideline indicated by the Sarkaria Commission, National Commission which reviewed the Working of the Indian Constitution and others.
The power to enter into international treaties or conventions is a power of the Union executive and the president is there to do. However, Article 253 of the Constitution requires a parliamentary legislation for giving effect to these agreements. Two disputes have been seen till date in the implementation of international treaties that has done under Article 253. The first was seen in 1995 on agricultural issues and the WTO and the second in 2007 in the context of Indo-US nuclear civilian deal. Moreover, the Constitution of India envisages what may be called ‘Cooperative Federalism’ in as much as Article 256 stipulates that the executive power of the State ‘shall be so exercised as to ensure compliance with the laws made by Parliament’. This Article goes on to say that, ‘the executive power of the union shall extend to the giving of such directions to a state as may, appear to the Government of India to be necessary for that purpose’.22 The emergency power of the union to take over the government of a state under Article 356 on the recommendation of the Governor or otherwise is a unique and frequently criticized provision of the Indian Constitution with far reaching implications for federalism. According to the Constitution, the union executive can exercise this power in the event of the breakdown of the constitutional machinery in a state, on the report of the Governor or otherwise. This power has been severely misused by all parties in power in New Delhi in the past. Therefore, it can be said that administrative relations in Indian federalism is not smooth.
More or less, the administrative relations in the Canadian federation are smooth. In each of the 10 provinces, the sovereign is represented by a Lieutenant-Governor, appointed by the Governor-General-in-council acting on the advice of the Ministry or Executive Council, which is responsible to the Legislature, and resigns office when it ceases to enjoy the confidence of that body. Comparatively, the administrative state in Canada has responded differently to the pressure of NPM of executive federalism in the past decade. The debate over the ‘vertical fiscal imbalance’ and the mistrust stemming from several acts of federal unilateralism also present a challenge for innovation at the administrative level. These developments will have enduring implications for innovation at the administrative level. Comparatively, inter-governmental administrative reform in Canada has been less of a political priority, less central to the public sector reform agendas of the federal and provincial governments and less of a research priority in Canadian public administration. The scholarly interest in the relationship between federalism and the administrative state in Canada has not paralleled the interest in the US and Australia in the 1990s. Scholarly work on inter-governmental administrative relations at the IGR and IGM levels has not received the same attention as in the US & Australia. Although not a recent research focus in Canada, analysis of the inter-governmental administrative state in Canada did flourish in the 1970s and 80s, and there have been some insightful observations related to the changing character of executive federalism and the general implications for the Canadian administrative state. According to Cameron and Simeon, federalism entered a period of collaborative federalism where inter-governmental relations became a partnership between equals whereby the federal and provincial governments began searching for collective solutions to the challenges faced in the increasing number of policy areas where their responsibilities overlapped. Key initiatives such as the push for the use of bilateral and multilateral agreements under the 1994 Efficiency of the Federation Initiative initiated at a first ministers’ meeting in 1993 were aimed at improving inter-governmental relations in line with the goals and values of NPM. As stated by the federal Clerk of the Privy Council, in her annual report to the Prime Minister, under this initiative ‘federal and provincial levels of governments are co-operating on an ongoing basis in order to increase administrative efficiencies and improve client service to harmonize procedures and regulations, and to reduce both costs and unnecessary overlap and duplication’. By 1995, the Clerk reported that multilateral and bilateral action plans, which included items aimed at improving program and service delivery in virtually all sectors, had been signed with most provinces and territories. In the federal governments’ wide-ranging Program Review exercise in the mid-1990s, among the six key questions of the review was the ‘Federalism Test’ which asked: ‘Federal funding for post-secondary education, health and social assistance were combined in one unconditional block grant and cut significantly. This decision fundamentally altered federal-provincial relations and signaled a retreat in the federal leadership role in social policy’. In addition to the general concern that governments, at all three levels, in the Canadian federation had lost policy capacity with the downsizing and restructuring of the period. There was a particular concern that this was very critical in a time when governments should be building horizontal and vertical policy capacity. The 1995 federal Deputy Minister Task Force on Strengthening Policy Capacity discussed the issue of policy capacity specifically in the inter-governmental context. In the task force report, policy capacity outside the federal bureaucracy is divided into two sections. The first discussed the broader policy research community and the second discussed ‘policy collaboration’ with the provinces. The report states, ‘Our institutions for cooperative federal-provincial policy are weak. It is something of a paradox that we operate within far more structured institutional arrangements for cooperative policy work with many of our international partners than we do within our federation’. Also, there are a number of factors not necessarily associated with NPM which may have had an impact on the degree of inter-governmental innovation in the Canadian administrative state. Significant developments such as the move in the late 1990s away from the preoccupation with constitutional reform are said to have opened the space for non-constitutional innovation and collaboration. Other factors in the past five years including the federal budget surplus, more trust and faith in public servants, rebuilding of policy capacity at federal and provincial levels, the implementation state of inter-governmental agreements, more technological capacity, and a general cultural awareness of the importance of working horizontally and vertically in the public sector to improve policy outcomes indicate the climate should have been ripe for intergovernmental innovation in the past decade. A review of inter-governmental innovation in the Canadian administrative state reveals that, despite this context, inter-governmental innovation in the context of executive federalism has faced a number of challenges which have weakened its overall capacity.
In India, the outstanding feature of the financial relationship between the union and the states consequently is that the former is always the donor and the latter the receiver.23 Within the present structure of union-state relations, all state governments have to cope with a paucity of financial resources. In Indian context, one thing has been observed, ‘the financial requirements of the states are vastly increasing while the union has over the years cornered a major chunk of the country's national resources and has even gone to the extent of encroaching on the states’. Another observation is the increasing indebtedness of the states to the union. The states find it difficult to repay the installments or interests on the debts without taking recourse to further central assistance.24 The Seventh Schedule of the Constitution vests taxing powers both in the union list and the state list. But there is a paradox between the elastic resources of revenue earmarked for the centre and the expansive developmental expenditure of the States. That's why, Indian States are facing resource problems in their day-to-day developmental program. The concurrent list does not include any item pertaining to taxation. Proceeds of the taxes from the state list are retained by the states, while proceeds of some of the taxes of the Union list are partially or wholly allocated to the states to rectify the imbalance between the functions and resources of the states.25 Such taxes are of four types: (1) those levied by the union, but collected and appropriated by the states; (2) those levied and collected by the union, but assigned to the states; (3) those levied and collected by the union, but distributed between the union and the states; and (4) those union excise duties which are levied and collected by the union, but whose proceeds are shared between the union and the concerned states. Another attempt to rectify this imbalance is made by the provision of grants-in-aid in the Constitution Art.275 whereby the union as a guardian may extend financial assistance to various units in times of need and for their all round development. The scheme defining financial relations between the union and the states is flexible and adaptable to varying needs depending on the situation.
Under Article 280 of the Indian Constitution, Finance Commission was established for the purpose of allocating and readjusting the receipt from certain sources. This provision of the Constitution is for the solution of this extremely complicated aspect of federal relationship. The union and states are mutually dependent, and this coordinate nature has given stability to the working of Indian federation.26 Plan as well as non-plan resources are transferred to the states on the advice of both the Finance Commission and the Planning Commission. Another category of transfer in these areas, called discretionary grants (Art. 282), is made on the advice of the planning commission for any specific purpose/subject falling under the union, state or under concurrent jurisdiction. For example, take the case of the Centrally Sponsored Schemes (CSS), including the Pradhan Mantri Gramodaya Yojna (PGMY) introduced by the NDA government. This Yojana was launched in the 2000–01 annual plans in all the states and union territories to achieve the objective of sustainable human development at the village level.27
The Sarkaria Commission had recommended an amendment to the Constitution so as to enable the Parliament to provide for the sharing of the corporate tax along with suitable adjustments in sharing income tax and excise duties between the union and the states. It had also recommended the appointment of an expert body by the Union Government with appropriate representation from the states by the union government to suggest reforms in taxation and resources mobilization by the union and the states. An important development in union-state relations is the setting up of the National Commission to Review the working of the Constitution (NCRWC) in 2000 that submitted its report in 2002. This eleven-member commission chaired by Justice M. N. Venkatachaliah has by and large endorsed the recommendation of the Sarkaria Commission. The Commission recommends a new look at fiscal federalism to allocate taxation of the expanding service sector of the economy to the concurrent list rather than settling the matter in a serendipitous way through residuary mechanism. Another valuable recommendation is the establishment of an ‘Inter-state Trade and Commerce Commission’ under Article 307 (read with Entry 42 of the union list). Precisely, reading the role of the Constitutional heads of the federal and provincial states, more or less the NCRWC report has generally reiterated the well considered views of the Sarkaria Commission.
The Canadian federalism grants more tax sovereignty and flexibility to its member states. The member states have the right to decide on all tax resources except for VAT, which is exclusively in the hands of federal government, and which is also the main source of income of the federal government. This tax competition system or ‘concurrent’ system is, however, regulated in order to avoid ‘overfishing’, and to maintain the tax sovereignty of member states. Here, we have to examine in greater detail two of the most important elements of the financial relationship: Conditional and unconditional grants; and equalization grants. Actually conditional grants were one of the means by which the financial gap of the 1930s was bridged. It is essential because of the imbalance of resources across the country. The first conditional grant in Canada was given in 1912 for agricultural instruction.28 Large scale grants of this type were offered in 1927 to help finance old age pensions. After the World War II, vast expenditures on health and welfare necessitated another major expansion. In fact, over the years, these conditional grants were made available under the provisions of Ottawa's spending power. In this scenario, on certain occasions provincial leaders might have wished to spend their money on other programs, but there was no way to shift resources unless Ottawa agreed. Gradually provinces grew in financial health, so it was inevitable that they would seek a revision of these fiscal arrangements. Ultimately, the restrictive conditional grants system ended, due to long struggle led by militant Quebec, and to some extends Alberta and Ontario. Ottawa is increasingly offering unconditional grants, which the provinces can spend in any way they wish because they are not designated for any specific expenditure program.29
Equalization payments are unconditional transfer payments to the provinces from the federal government calculated on the ability of each province to raise revenue. They enable less affluent provinces to provide an average level of public services without the need to resort to excessively high levels of taxation. How successful have the equalization efforts been? In terms of increasing per capita provincial expenditure, they can be considered successful because they brought the ‘have not’ provinces up to the level of the ‘have’ provinces. The ultimate objective of equalization policy, of course, is to strengthen federalism by meeting the needs of the weaker elements in the union, establishing a national standard for social services. Yet, the impact of the equalization program is substantial. In 1980–81, the program contributed 21 to 26 per cent of the general revenue of all governments in the Atlantic province, as well as lesser but significant proportions of the government revenues of Manitoba and Quebec.30
At the inception of the federal union in 1867, the federal government took over existing provincial debts and agreed to pay per capita subsidies and annual grants to provinces to support their activities. As early as the 1870s, one province began enacting personal and corporate income taxes as well as estate taxes.31 In the period between 1896 and 1913, there was an enormous increase in public expenditure. Federal subsidies continued to decline as a proportion of provincial revenue-from 58 per cent in 1874 to 8 per cent in 1929. The early 20th century saw an important development in federal/provincial fiscal relations: the use of conditional grants–sometimes called grants-in-aid or shared cost grants. The federal government was willing to provide funds to the provinces for specific programs on condition that the money was spent in accordance with federal standards. The money was typically offered on a ‘take-it-or-leave-it’ basis and, while tempting for most provinces, it could be disruptive of budgetary planning and priorities perhaps more significantly, the provinces grew increasingly annoyed at the paternalistic way in which the grants were set up and administered. The great depression of 1930 had a devastating impact on their fragile finances. The depression served to reveal that the division of federal/provincial fiscal jurisdictions was inadequate for the 20th century-some major restructuring would be necessary to let the country survive as a coherent federal system. Federal conditional grants were stepped up, but were not sufficient and led to a certain amount of heavy-handed federal intervention. The 1930s have become known as the ‘decade of tax jungle’.
The Royal Commission on Dominion-Provincial Relations (the Rowell-Sirois Commission) was established in 1937 to study the matter. In 1940, through their recommendations, the Commission suggested that the federal government assume responsibility for personal and corporate income tax collection, the accumulated debt of the provinces and the support of the unemployed through a social security program.32 On the break out of World War II, the federal government usurped the income tax and succession duty field for it self. In return, the provinces were given compensatory payments. Thus began a complicated series of tax-rental and tax-sharing agreements. The federal government in effect took over virtually all provincial sources of revenue from direct taxation in exchange for a payment of ‘rent’. As the emergency created by World War II disappeared, the federal government began to assume responsibility for the problems of post war reconstruction. In this context, the concept of the balanced budget was replaced by Keynesian economic theory. The federal government committed itself to maintain a high and stable level of economic growth and employment.
In 1960s, tax-sharing was a continuation of the tax-rental program; however, instead of per capita grants, the provinces were to get a fixed percentage of three standard taxes: personal income tax, corporate tax and federal succession duties. Tax-sharing protected provincial autonomy to some extent, and was supplemented by a payment in the form of an unconditional grant. Despite this apparent liberalization of federal policy, government introduced a tax abatement system for two provinces. This agreement only encouraged agitation by all the provinces for a better deal. Thereafter, the abatement system was gradually extended to all provinces. The federal government, thus, withdrew somewhat from the personal and corporate income tax field. However, by 1972, the abatement system was practically at an end. Ultimately, the federal government introduced a guarantee program to prevent provincial loss of revenues resulting from a realization of their tax base vis-à-vis that of the federal government. Now, Ottawa still collects taxes for all the provinces except Quebec (at rates set by the provinces); Quebec collects its own personal and corporate income tax.33
Judiciary and Federalism
Literally, the Institution of Judiciary is playing a very important role in the federal system of India and Canada. In this context, veteran Ian Greene had argued that Judicial Activism (through PIL and other measures) has strengthened federal politics in Canada and India, and Hugh Mellon had discussed the attempts by the Canadian Supreme Court to find a balance between federalism and other key founding principles of democracy, constitutionalism and rule of law and protection of minorities. Particularly in the Canadian federation, at its revolutionary phase, judicial interpretations favoured greater provincial autonomy. Right from the days of the judicial committee of the Privy Council, the judiciary interpretations favoured the BNA Act to the advantage of the provinces. Before the institution of Supreme Court (1949), Privy Council was the highest court of appeal in Canada.
In India, there is a single integrated judicial system for the union and the states laws independently. The Supreme Court has ‘original jurisdiction’ in any dispute between the Government of India and any State/States or between two or more States. Under the power of judicial review, the Supreme Court and the High Courts have been given the power to declare a law to be unconstitutional if it is beyond the jurisdiction of the legislature according to the distribution of powers provided by the constitution, or if it is in contravention of the fundamental rights or of any other mandatory provisions of the Constitution (Art. 13). Therefore, the Court has the Constitutional power and corrective duty to prevent encroachment, either overtly or covertly, by the Union on the State field, or vice-versa, and thus maintain the balance of power.34 This role of the Court as a guarantor of the federal system was asserted subsequently in (Golaknath Case 1967), when the Indian Constitution was characterized as a federal Constitution in which the judiciary was not only the protector of the Constitution, but also its sole interpreter, and this position could not be changed by some ordinary legislation. In S. R. Bommai Case 1994, the Supreme Court accepted federalism as a Basic Feature of the Constitution of India because, ‘the federal principle is dominant in our Constitution in as much as the States are sovereign in the field which is left to them and they have an independent Constitutional existence and they have an important role to play in the political, social, educational and cultural life of the people of the Union; the States are neither satellites nor agents of the Centre’.
Under Independent Judicial Structure, the functioning of levels of governments and a requirement of inter-governmental mechanisms is a fundamental pre-requisite of any federal nation. The functioning of several inter-governmental agencies in both federations is indicating towards that. Canada and India both have a divergent pattern of intergovernmental relations. At the beginning, the Canadian Constitution was quiet about the need for any formal agency for inter-governmental contacts and policy-making. In this context, gradually, Ministerial meetings and First Ministers conference were held. Due to the emergence of a new face of economy affairs, such meetings gained much frequency and significance. Ultimately, in the Constitution Act of 1982, the First Minister conference was provided Constitutional recognition. Since then, increase in wars, economic depression, cultural conflicts, constitutional reform inter-provincial and international trade, ecological challenges all have enlarged the role and scope of inter-governmental relations and mechanisms.35
A classical Canadian form of executive-dominated inter-governmental relations mediated the stresses and strains the country encountered in the post-war period. Despite the seriousness of the tensions and the intensity of the processes by which they were addressed, there was remarkably little institutionalization of the forums utilized for this purpose. The question here is whether the structures or formal institutions shape the relations between federal entities. The answer is that they are few, and relatively weak: the First Ministers Conference, the Annual Premier's Conference; various ministerial councils; and meetings of officials. Analysis is as follows:
- First Minister's Conference (FMC): This is a gathering of provincial premiers and the Prime Minister of Canada. It is called at the pleasure of Prime Minister, who chairs the sessions. The reality is that it has no continuing institutional support, no staff serving it, no routine procedure for following upon business and reporting back. Sometimes, the meeting is held in public, usually at the Ottawa Conference Centre, and sometimes, at Prime Minister's residence in small and private nature. The purpose of this conference is to buildup the fruitful working relations between inter-governmental agencies. But it is slow in its purpose till now.
- Annual Premiers Conference (APC): Literally, the Annual Premiers Conference evolved into significant inter-governmental institutions, moving in to prominence as the frequency of FMC's has declined. The meeting is held every August under a rotating chairmanship. This association of provinces and territories has in recent years become a full fledged inter-governmental meeting, professionally supported by civil servants, preparing and receiving position papers, issuing communiqués, and launching projects to be undertaken by the relevant ministers. It was at one of these meetings that the social-union initiative began, which resulted in the Social Union Framework Agreement (SUFA, signed in 1999 by Ottawa and all the provinces and territories except Quebec).
- Ministerial Council: Ministerial Councils, sometimes federal-provincial-territorial, sometimes purely provincial-territorial, have existed for many years; but in recent years they have greatly increased in number, have become more institutionalized, and have played a more formal role in carrying out mandates assigned by first ministers. These workhorses of the system now operate in fields such as social-policy renewal, forestry, transportation, education, and environment.
- Meeting of Officials: The meeting of elected representatives described above are supported and paralleled by a large number of meetings of senior and middle-rank officials in all the relevant fields. Held almost entirely out of the public vied, they are indispensable to the proper functioning of the federation.
Till 1990, the pace and intensity of inter-governmental meetings at the senior levels of deputy ministers, ministers; and first ministers have varied considerably over time with the changing policy agenda and the political interest of governments. In the latter part of the 1990s, a style of IGR emerged in Canada that might be characterized as collaborative federalism. It arose in part as a result of the failure to achieve constitutional reform in the late 1980s and early 1990s. This is a style of IGR by which national goals are achieved, not by the federal government acting alone or by the federal government shaping provincial behaviour through the exercise of its spending power, but by some or all of the governments and the three territories acting collectively.
The environment is another area in which both orders of government exercise broad jurisdiction. All governments (except Quebec) signed the Canada Wide Accord on Environmental Harmonization and a set of sub-agreements on Canada.International trade policy, both with respect to the North American Free Trade Agreement and to global bodies such as the World Trade Organization also engages both-federal and provincial interests and policies. International trade and commerce is a clear federal jurisdiction, but (unlike the US or Australia) the constitution has been interpreted to mean that the federal power does not extend to imposing the terms of international agreements on the provinces when they involve provincial jurisdiction.
In India, there are both formal institutional and informal political arrangements for centre-state coordination. Among the formal mechanisms are the Planning Commission, Finance Commission, National Development Council, Inter–State Council, National Integration Council, Zonal Councils, and Tribunals for Adjudication for specific duties and various commissions and committees to look into specific aspects of Union–State relations. The informal mechanisms include ministerial and departmental meetings, conferences of constitutional functionaries and of political executives and the governors and Chief Ministers conferences that are convened by the President and the Prime Minister. These informal arrangements are aimed at laying down procedural norms of conduct, particularly over such issues as the sharing of central taxes and the Union's intervention in States affairs and at evolving a common policy on such trans-governmental issues as the environment, commutations and health. Similarly, such informal mechanisms evolve conventions of governance on questions of States rights, inter-state trade and commerce, sharing of river waters, inter-state communications and other matters.36
Under Article 263 of the Indian Constitution, there is a provision for the creation of an Inter–State Council (ISC) i.e. the necessity of inter-governmental relations. But ISC was constituted, as per the recommendations of the Sarkaria Commission in the year 1990, by V. P. Singh government. The Government of India by its Resolution dated 15 March 1950, created the Planning Commission and the NDC to continuously guide the Union as well as the States about the fields, manners and the speed with which they would proceed with their development plans and projects. The NDC was to be known as the National Economic and Development Council (NEDC) and the ISC would perform functions as laid down in Article 263. Therefore, the two bodies, under the Chairmanship of the PM, would be performing distinct functions - the NEDC dealing with matters of socio-economic planning and development and the ISC the remaining functions in the inter-state relations. In the era of extreme coalition politics in India, the ISC and the NDC depict a change in inter-governmental relations.
Role of Party System
Canada and India, both the Parliamentary federal democracy, had started their journey with multi-party system but one dominant party. Conservatives in Canada and Congress in India have played a very important role in the nation building process. Gradually, the dominancy of conservative party broke, and the Country moved to an alternating two-party system with the Liberals and Conservatives. After that the third party named, New Democratic Party emerged and register its presence peacefully. But at the Provincial level, numbers of parties have always existed. A major change in the party system of Canada recorded during the 1993 Parliamentary election. Actually, after 1993 election, their party system reflected multi-partisan configuration, with the emergence of the Reform Party and the Bloc Quebecois. According to Nelson Wiseman (who has a close watch on the past, present and future politics of Canada), the success of coalition government and the introduction of proportional representation, if it happens, will, for sure, encourage the proliferation of regional parties, which will play decisive roles in whatever federal government emerges. Another scholar like Alan Whitehorn examined the role of ideology in Canadian party politics. He discussed the emergence of new ideological militancy during the 1990s, when parties such as the right wing Populist Reform Party and separatist Bloc Quebecois challenged the established national parties.37 In India, in 1967 at State level and in 1977 at the National level, Federal tendency had emerged despite the strong Parliamentary Centralism of Congress Party. The result of the 1989 Lok Sabha election was indicating towards the greater federalization due to the transformation in the party system from One-Party dominance to Multi-Party system/coalition. In this scenario, the federal expert Akhtar Majeed argued, ‘what is now called competition in India's negotiated federalism actually developed as a result of the emergence of coalition politics and power sharing’. Undoubtedly, regional parties are playing a significant role in India and due to this tendency; we are too close to achieve the real federal status. In this way, the Union and the States, under the impact of competitive party politics and increasing regionalism, have become more like coordinate centers of power. Howsoever strong, the position of the Union in planning, programming and financing, the execution of plans and projects rests in the hands of the state governments. Exigencies of coalition politics have forced the union and state governments to share power. A redistribution of powers through decentralization and the devolution of authority from the union to the states and from the states to the panchayats and municipalities, is serving to facilitate the attainment of the objectives of the Constitution: unity, social justice and democracy.
Prof. M. P. Singh had made a Comparative study of the Canadian and Indian party systems, and had argued that the evolution of coalition politics in both countries had strengthened their federalism. He has asserted that the combination of the parliamentary and federal principles of government in the two countries has triggered a dialectical process of party system development; where in the parliamentary form of government and plurality of electoral system discourage multiplication of parties, but social and political federalism tend to multiply parties. Thus, the emergence of party system and its developments in both nations have been marked by the phases of one-party dominance and multi-party configurations.
Concurrent and Residuary Powers
The word concurrent is indicating towards shared jurisdiction. Under Section 95 of the Canadian Constitution, both the national and provincial governments may regulate with respect to agriculture and immigration. In fact, on the matter of concurrent list, both the levels of government may legislate, but in case of any conflict between the federal and provincial laws, a tool like ‘Supreme Clause’ has been generated there to resolve the issues. Despite, the Concurrent nature of jurisdiction upon the subject like agriculture and immigration, supremacy has vested in Canadian Parliament as in India. In both countries, residual powers are in the hand of federal government for establishment of peace, maintenance of law and providing good governance at all over the country. Therefore, on residual matters, both federations have not followed the traditions which are established by different federations like United States, Switzerland, and Australia etc.
Charles D. Tarleton38 describes an Asymmetrical Federation as a unit that has about it ‘a unique feature or set of features, which would separate in important ways its interests from those of any other states, or the system considered as a whole’. On that criterion the United States, Canada and India are Asymmetric Federation. Simply, it can be understood, when federalism based on unequal powers and relationships in political, administrative and fiscal arrangement spheres between the units constituting a federation. According to Ruchi Tyagi, Asymmetry in Canadian federalism on the one hand means the federal government's dominance over the provinces along with special constitutional recognition to Quebec; and on the other, it means that in certain areas, especially those which have the most impact on local populations, such as health care and immigration, some provinces have the option of determining for themselves the best way to administer the resources received from the federal government. In Canada, Asymmetry can also be found in the area of immigration, in which six provinces have their own specific arrangements with the federal government, each one different from the others. More recently, the federal government signed a health care accord with the provinces in which it recognized the specificity of Quebec society and respected its need to implement its own plan for renewing the provincial health system. Thereafter, Quebec agreed to honour the goals of the overall health plan i.e. designed by federal government. Such types of understanding in Canadian federation are indicating towards Asymmetrical nature sharply.
The Indian federation is not founded on the principal of equality between the union and states (as is the American classical federation). Because, Article 3 of the Indian Constitution is talking that the parliament, which has powers to constitute new states by separating territories from the existing ones, alter their boundaries, and change their names. That means, in this regard the approval of state or states are not necessary. According to M. Govind Rao, ‘the central government in India has the power, and it actually does invade the legislative and executive domains of the states’. Till today, two types of Asymmetry could be identified in Indian political system: the first is constitutional arrangement and the second is simply the result of administrative and political power play. In this context, Nirvikar Singh and M. Govind Rao argued, ‘In India, such a dynamics created by the end of single party rule in the centre and states, emergence of coalition government at centre and regional domination or regional parties in the coalition and wielding power in the states may be cited as the examples of such asymmetry.39
Initially, the Canadian federation was a union of four provinces, but now it is composed of ten provinces and three territories. In fact, in 1867 where Canada became a federation, it was the third oldest federation in the world, after USA and Switzerland. (The two official languages are English and French-the mother tongues of 57.2% and 21.8% people respectively, at the general census in 2006. About 45% of the populations are Roman Catholics.) Thus, in the contemporary world Canada is a federal parliamentary state under the Constitution Act of 1982; executive power is vested in the British Monarch, as Head of the State, and may be exercised by her representative, the Governor-General whom she appoints on the advice of the Canadian Prime Minister. And after general elections, the Governor-general appoints the Prime Minister and on the latter's recommendation, other ministers to form the Federal Ministry. The federal parliament comprises the head of state, a nominated Senate (a maximum of 112 members, appointed on a regional basis) and a House of Commons (308 members, elected by universal adult suffrage for single-member constituencies). A parliament may last no longer than five years.
Through the Government of India Act of 1935, the British Colonial Government tried to establish the federal form of governance, but did not succeed, due to the refusal of native states to do so. Ultimately, as a newly independent nation, India has adopted a federal form of governance since the implementation of its Constitution. Therefore, since 26 January 1950, legally, India is a parliamentary federal state like Canada, with a republican format, an elected president as a head of state. The President appoints the leader of the majority party/coalition in parliament as the PM and, on the latter's recommendation, other ministers to form the Federal Ministry. The President is elected by proportional representation not directly through the adult suffrage. Article 79 of the Constitution says, ‘the federal parliament comprises the president and two houses namely Lok Sabha and Rajya Sabha. Article 1 of the Indian Constitution says, ‘India, that is Bharat, is a union of states’. But, Indian federation is not an ‘indestructible union of indestructible states’ like USA. Right now, Indian federation is a collaboration of 28 States and 7 Union Territories including the National Capital Territory of Delhi with a special status.
According to OGG, ‘A federal system of government prevails where the political sovereign has distributed the powers of government among certain agencies, (a) central, (b) divisional or regional, and has done so through the medium of constitutional provisions, which neither the central nor any divisional government has power to alter’. The protection and implementation of the division of this power are to be done through the high official than the central and state governments. Both India and Canada fulfill this criterion. Dr Ruchi Tyagi argues, ‘In contemporary socio-political life in India and Canada, federalism has emerged as a widely acceptable model of state-formation and nation-building with its much acclaimed principles of “self rule” and “shared rule”.’ Socially, both have recognized pluralism as a valid basis of peaceful co-existence, and politically both seeks to stabilize a pattern of Constitutional diffusion of power in order to reconcile particularistic ‘self rule’, with general ‘share rule’. More over, with certain distinctions, the grand design of federal nation building in both the countries seeks to build and sustain ‘the unity of polity’ and ‘the plurality of society’. At last, it can be understood that both the nations have asymmetries in the federative structure, despite which both are running smoothly.
Form of Government in India and Canada
India is a federal republic wherein Legislative power is vested in the Parliament, consisting of the President and two Houses. The Council of States (Rajya Sabha) has 245 members, most of whom are indirectly elected by the state assemblies for six years (one-third retiring every two years), the remainder being nominated by the President for six years. The House of the people (Lok Sabha) has up to 550 elected members, serving for five years (subject to dissolution). A small number of members, serving of the Lok Sabha may be nominated by the president to represent the Anglo-Indian community, while the 550 members are directly elected by universal adult suffrage in single-member constituencies. The President is a constitutional Head of State, elected for five years by an electoral college comprising elected members of both Houses of Parliament and the state legislatures. The President exercises executive power on the advice of council of Ministers, which is responsible to Parliament. The President appoints the Prime Minister, and on the latter's recommendation, other ministers.
India contains 28 self-governing states, each with a governor (appointed by the President for five years), a legislature (elected for five years) and a council of ministers headed by the chief minister. Bihar, Jammu and Kashmir, Karnataka, Maharastra and Uttar Pradesh have bicameral legislatures, the other 23 state legislatures being unicameral. Each state has its own legislative, executive and judicial machinery, corresponding to that of the Indian Union. In the event of the failure of constitutional government in a state, presidential rule can be imposed by the Union. There are also six Union Territories and one National Capital Territory, administered by lieutenant-governors or administrators, all of whom are appointed by the President. The territories of Delhi and Puducherry also have elected chief ministers and state assemblies.
Canada is a federal parliamentary state under the Constitution Act 1982, the executive power is vested in the British monarch, as Head of State, and may be exercised by her representative, the Governor-General, whom she appoints on the advice of the Canadian Prime Minister. The federal Parliament comprises the Head of State, a nominated Senate (a maximum of 112 members, appointed on regional basis) and a House of Commons (308 members, elected by universal adult suffrage for single-member constituencies). A Parliament may last no longer than five years. The Governor-General appoints the Prime Minister and, on the latter's recommendation, other ministers to form the Federal Ministry. The Prime Minister should have the confidence of the House of Commons, to which the Cabinet is responsible. Canada comprises 10 provinces (each with a Lieutenant-Governor and a legislature, which may last no longer than five years, from which a Premier is chosen), and three territories constituted by Act of Parliament.
|Parliamentary federal state||Federal parliamentary state|
|State has constituted under the Constitution Act 1950||State has Constituted under the Constitution Act 1982|
|Head of State—President||Head of State—British Monarch|
|President—Pratibha Devi Singh||Governor-General—Devid Johnston|
|Prime Minister—Dr Manmohan Singh||Prime Minister—Stephen Harper|
|Two Houses—(i) Lok Sabha (552) & (ii) Rajya Sabha (250)||Two Houses—(i) Senate (112) & (ii) House of Commons (308)|
|28 States and 7 Union territories by Act of Parliament.||10 Provinces and 3 territories constituted|