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CHAPTER-1INTRODUCTION

1.1 AIMS AND OBJECTIVES OF RESEARCH

To study in detail the meaning of federalism and to describe the basic principle of Federalism. To

examine the character of Indian federal system and whether or not the Indian Constitution can be

described as a Federal Constitution. To give a distinctive study of other federal countries with India.

To critically examine the Indian Federal System.

1.2 RATIONAL AND SIGNIFICANCE OF STUDY

There has been a lot of insoluble controversy as to the question whether Indian Constitution is

federal or unitary. Some characterized it as federal, while other treated it as unitary. To solve this

controversy it is necessary to examine the essential characteristics of a federal constitution. Indian

Constitution has chosen to adopt federal system but with a capacity to work as unitary when so

required. As the new trend in all federations is to have some sort of co-operative federalism with

somewhat dominating powers to the centre, the framers of the Indian Constitution have also

sought to provide for co-operative federalism. Cooperative federalism is a modern approach where

the powers are distributed between National government and State government.

1.3 HYPOTHESIS

Constitution of India is neither purely federal nor purely unitary but a combination

of both. According to the need and demands of circumstances and to meet the aspiration of the

people, there are some provisions in the Indian Constitution which deviates from truly federal

character. It is like a chameleon which can change colour according to environment. Much will

depend upon the role of the President, regional and

national parties, the strength of the political party in power at the Centre and its backing inStates.Th

e constitution of India contains various provisions for inter-state coordination andcooperation.


Cooperation and coordination between the Union and States have beenconsidered necessary for the

development of the country. The Constitution of India,thus, provides for Cooperative Federalism.

1.4 STATEMENT OF PROBLEMS

What are the basic principles of Federalism and to what extent do they incorporated into the Indian

Constitution?

Whether the Constitution of India is truly federal in character or more unitary?

Whether the federal system in India is same as in U.S.A, Canada and Australia?

Whether the condition of the present Indian Constitution can be described as Cooperative

Federalism?

1.5

SCOPE OF WORK

The Indian Constitution cannot be called "federal" or "unitary" in the ideal sense of theterms. The

British parliament has set up a federal system in India by the Government of India Act, 1935.

Article 1(1) of the Constitution of India says that, "India that is Bharat, shall be a Union of States."

The Constitution, thus postulated India as a Union of (States and consequently, the existence of

federal structure of governance for this Union of States becomes a basic structure of the Union of

India. The Constitution makes a distribution of powers between the Union and the

States, the jurisdiction of each being demarcated by the Union, State and Concurrent lists. In case

of a conflict between the two legislatures over a matter in the Concurrent list the will of the

Parliament prevails. The supremacy of the Constitution- the hallmark of a federation- is an

important feature of the Indian polity. Neither the Central government nor the State Governments

can override or contravene the provisions of the Constitution. Another prerequisite of a federation,

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namely, an independent judiciary -an interpreter and guardian of the Constitution - is also present in

the Indian Federation. The Supreme Court can declareany law passed by the Union Parliament or a

State legislature ultra vires if itcontravenes any of the provisions of the Constitution. The

Constitution of India contains various provisions for inter- state coordination and cooperation.

Thus, it provides for Cooperative Federalism.

1.6 RESEARCH METHODOLOGY-

Methodology can be:

"the analysis of the principles of methods, rules and postulates employed by a discipline "the

systematic study of the methods that are, can be, or have been applied within a discipline", "a

particular procedure or set of procedures".. This research is based on the Doctrinal research.

Doctrinal research means a research that has been carried out of legal proposition or propositions

by way of analysing the existing statutory provisions and cases by applying the reasoning power.

According to SN Jain, doctrinal research involves analysis of case law, arranging, ordering and

systematizing legal propositions and study of legal institution through legal reasoning and rational

deduction.

CHAPTER-2

CHAPTERISATION

2.1 MEANING OF FEDERALISM

Federalism is a political concept in which a group of members are bound together by covenant

with a governing representative head. The term "federalism" is also used to describe a system of the

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government in which sovereignty is constitutionally

divided between a central governing authority and constituent political units (like states or provinc

es). Federalism is a system in which the power to govern is shared betweennational and

provincial/state governments, creating what is often called a federation. Proponents are often called

federalists. In Canada, federalism typically implies opposition to sovereignty's movements. In the

United States, advocates of a very small federal government and stronger state governments are

those that generally favor confederation, often related to early"anti-federalists" and later the

Confederacy in the United States. Argentina, Australia, Brazill, India and Malaysia among others,

are also federalcountries. Modem Constitution and Government are classified into Unitary and

federalon the basis of concentration or distribution of powers and the nature of the

relationship between the central and the regional authorities. In a Unitary constitution, supreme po

wer belongs to the Central Governments and there is no constitutional division of power between

the national and regional government.

The term 'Federal' is derived from the Latin word 'Foedus' this means treaty or agreement. In case

of federal constitution, there is a treaty or agreement namely, awritten constitution, which defines

and determines the powers of the two sets of government, national and regional. A federal

government is a dual government.

1. A citizen of federal country thus becomes subject to the decree of two governments-

Central and the regional. The Regional Government is called the State Government asin

U.S.A, Australia or India, or Provincial Governments in Canada.

Definitions:

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Following are some of the definitions which help to understand and appreciate themeaning and

nature of federalism.

1. Prof. K. C. Wheare

According to him, "Federal Principle is the method of dividing powers so thatthe general and

regional governments are each, within a sphere, coordinate and independent." Existence of

coordinate authorities' independent to each other is the gist of the federal principle.

2. Montesquieu

According to him, "A Constitution by which several similar States agree to become members of a

large one is a federal government."

3. Dicey

According to him, "A federal State is a political contrivance intended to reconcile national unity

with the maintenance of State rights." Thus in a federal Constitution both the Central and regional

governments areco-ordinate and independent in their spheres and not subordinate to one another.

The Constitution of U.S.A. which establishes dual form of government, is a classic example of

federalism.

2.2 TRADITIONAL AND MODERN APPROACH

Federalism is a comparatively modern concept. However, there is no agreed definition of a federal

state. Federalism originates from ancient Greece. Broadly speaking, there are two approaches to

understand the federal system which are as follows:-

expression in the formulation of concurrent powers, an area over which both thenational and State

governments operate. The modern Jurists instead of interdependencestates talk of Cooperative

federalism wherein the relationship between two sets of Governments is that of interdependence.

Some writers have suggested federation as pure creature of expediency whereby the powers are so

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distributes between the nationaland state governments that there is scope for constant adjustment of

relations betweenthe two sets of government according to the requirement of both time and place.

Diceyhas defined a federal state, as "a political contrivance intended to reconcile nationalunity with

maintenance of state rights.

2.3 ESSENTIAL FEATURES OF FEDERALISM Essential features of Federalism

A Constitution will be a Federal Constitution, if it possesses the followingcharacteristics:-

a. Duality of Government:

While in a unitary state there is only one government i.e. National Governmentor Central

Government. But in a federal state, there are two governments thefederal or the central

governments and the government of each constituent'sstate. This features clearly differentiates

between federation and confederation

b. Distribution of powers:

The distribution of powers between the centre and the states is the mostimportant characteristics,

rather the core of any federal system. In reality, thewhole federal system revolves around this basic

core of distribution of powers.A federal constitution thus envisages a demarcation or division of

governmentalfunctions and powers between the centre and the regions.

c. Supremacy of the Constitution:

Supremacy of the Constitution is an essential feature of the federal constitution.The Constitution of

USA is a federal Constitution. Consequently, there issupremacy of Constitution in USA. Any act of

any organ of the governmentwhich is against theConstitution is invalid and of no force. The

Legislature, Executive or Judiciarycannot isolate the Constitution.The Supremacy of the

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Constitution is necessary for the establishment andmaintenance of Federal Constitution and Federal

Government. No person or governmental authority is above the Constitution.

d. Written and Rigid Constitution:

Actually it is not necessary for a federal Constitution to be written but

in practice it is always found written, because due to distribution of powers between the central gov

ernment and the State governments, an unwrittenfederal constitution will create confusion and

conflict. Indian Constitution is awritten Constitution.

d. Authority of Courts:

In a federal state, the legal supremacy of the constitution is essential to theexistence of a federal

system and to ensure this it is necessary to maintain theauthority of courts, which must have final

power to interpret the Constitutionand guard the entrenched provision of the Constitution.

CHAPTER-3

PATTERN OF FEDERAL GOVERNMENT- U.S.A, CANADAANDAUSTRALIA

The term federalism is also used to describe a system of the government in whichsovereignty is

constitutionally divided between a central governing authority andconstituent political units (like

states or provinces). Federalism is the system in whichthe power to govern is shared between the

national & state governments, creating whatis often called a federation.

U.S.A

In the United States, federalism is the system of government in which power is divided between a

central government and the government of each state. Before the U.S.Constitution was written,

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each American state was essentially sovereign. The U.S.Constitution created a federal government

with sufficient powers to both represents andunite the states, but did not supplant state

governments. This federal arrangement, bywhich the central federal government exercises

delegated power over some issues andthe state governments, exercise power over other issues, is

one of the basiccharacteristics of the U.S. Constitution that checks governmental power.The U.S.

Constitution establishes a government based on "federalism," or the sharingof power between the

national, and state (and local) governments. Our power-sharingform of government is the opposite

of "centralized" governments, such as those inEngland and France, under which national

government maintains total power.

While each of the 50 states has its own constitution, all provisions of state constitutionsmust

comply with the U.S. Constitution. For example, a state constitution cannot denyaccused criminals

the right to a trial by jury, as assured by the U.S. Constitution's 6thAmendment. Under the U.S.

Constitution, both the national and state governments aregranted certain exclusive powers and

share other powers.The U.S.A Constitution has been regarded as the 'epitome' of the classic

federalism.America started on its Federal carrier with a weak-centre & emphasis on State's

rights.The reason was that the U.S constitution came into being as a result of a voluntarycompact

among the preexisting states which conceded rather limited-powers to theCentre. A similar process

occurred in Australia.Also, the US- constitution was the product of the "laissez-Faire" era which

signified'minimum-government' and 'maximum-private' enterprises.In course of time, however

things have changed. The powers of the centre haveexpanded since 1787 and correspondingly the

powers of the states have shrunk.This has been achieved without any explicit-amendment of the

constitution but throughingenious legislative device and also through Judicial Activism. Now in

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present context, the states in the U.S.A are co-ordinate with the centralgovernment, as there

definitely-weaker vis-a-vis the centre. The process has been aided by such factors as tense

international situations, wars, vat economic and technological-developments, replacement of laissez

faire by the social-welfare etc

CANADA

The Canadian-constitution, definitely told an accent on the centre. In course of time,however the

privy-council, by its process of interpretation weakened the centre andraises the provinces. This

was the result of assertion of bilinguism and biculturism byQuebec (a French majority state). The

central-power to veto the provincial-legislationhas also come to be used sparingly as a result of

growth of conventions.On the whole, therefore, the provinces in Canada have greater freedom of

action thanthe other units in other federations and this has at times been inconvenient

andembarrassing to the centre, primarily in the area of foreign -relations andeconomic-matters.The

difficulty of any treatment of federalism is that there is no agreed definition of afederal state. The

other difficulty is that it is habitual with scholars on the subject tostart with the model of the United

States, the oldest (1787) of all federal constitution inthe world, and to exclude any system that does

not conform to that model from thenomenclature of federation. But numerous countries in the

world have, since 1787,adopted Constitutions having federal features and, if the strict historical

standard of theUnited States applied to all these later Constitutions from the federal class, for

according to the traditional classification followed by political scientists, Constitutionsare either

unitary or federal. If therefore, a Constitution partakes of some features of both types, the only

alternative is to analyses those features and to ascertain whether itis basically unitary or federal,

although it may have subsidiary variations. A liberalattitude towards the question of federalism is,

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therefore, inevitable particularly in viewof the fact that recent experiments in the world of

Constitution- making are departing

more and more from pure type of either unitary or federal system. The Questionwhether a state is

unitary or federal is one of degrees and the answer will depend upon"how many federal features it

possessed".

Canada is a federation with two distinct jurisdictions of political authority: thecountrywide federal

government and ten regionally-based provincial governments. Thefederal government includes the

Parliament of Canada and the prime minister, whilethe provincial governments include each

province's legislative assembly and premier.The two levels are linked together by the Canadian

Crown, from which all derive their sovereignty and authority, as well as a court system that rules of

jurisdiction betweenthe levels. The federal parliament and the legislative assemblies of the

provinces areeach independent of one another with respect to their areas of legislative authority.

Afew subjects are shared, such as agriculture and immigration, but most are either entirely within

federal jurisdiction, such as foreign affairs and telecommunications, or entirely within provincial

jurisdiction, such as education and healthcare.The three territories are creations of the Federal

Parliament and exercise delegated power and not sovereign power. The United Kingdom did not

follow this model whenConfederation was realized, making Canada different from its mother

country (andsimilar to its southern neighbor, the United States) in this respect. The governments of

cities and regions within provinces are creations of the provincial governments. Thefederal nature

of Canadian Constitution was a reaction to the colonial diversities in theMaritimes and the Province

of Canada, in particular the strong distinction between theFrench-speaking inhabitants of Lower

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Canada (Quebec) and the English-speakinginhabitants in Upper Canada (Ontario) and the

Maritimes. Federalism was considered

essential to the co-existence of the French and English communities. John A.Macdonald, who

became the first Prime Minister of Canada, had at first opposed afederalist system of government,

favoring a unitary system of government. Macdonaldlater supported the federalist system after

seeing the carnage of the American CivilWar. He sought to avoid the same violent conflicts by

maintaining a fusion of powersrather than a separation of powers south of the border.The division

of powers between the federal and provincial governments was initiallyoutlined in the British North

America Act, 1867 (now the Constitution Act, 1867),which, with amendments (in the British North

America Acts and the Constitution Act,1982), form the Constitution of Canada. Federalism is one

of the three pillars of theconstitutional order, along with responsible government and the Canadian

Charter of Rights and Freedoms.

AUSTRALIA

Whilst the presidential system of government and a comprehensive Bill of Rights inAustralia were

rejected, some of the federal features of the American system were used.These features include a

high degree of autonomy for the government institutions of thefederation and the states, a division

of power between these organizations, and a judicial authority to determine whether either level of

government had exceeded its powers.Australia successfully adapted the American concept of state

and federal governments possessing separate sovereignty within the framework of a constitutional

monarchy byestablishing the position of state governor to be appointed by the Sovereign on the

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advice of the relevant state premier, the Commonwealth Government playing no role inthese

appointments. This gives each state a direct link with the Crown that completely bypasses

Canberra, and can be contrasted with the Canadian system where provinciallieutenant- governors,

appointed by the Governor General on the advice of the federalPrime Minister, were once seen as

representatives of the Canadian federal governmentand not the Sovereign directly.Other aspects of

the Constitution of Australia are associated with the federal principle.Original states have equal

representation in the senate. Although this is not an essentialelement of federation, it reflects the

view that states (colonies) should be equal in status.Since federation the balance of power between

levels of government has shifted fromthe founding fathers vision. The shift has transferred power

from State governments tothe Commonwealth government. Phases in the development of

Australian federalismcan be identified.The first phase may be described as co-ordinate federalism.

In co-ordinate federalismthe Commonwealth and the States were both financially and politically

independentwithin their own spheres of responsibility.A factor in the expansion of Commonwealth

powers was the growth of defenceexpenditures which culminated in Australia's involvement in

World War I. After thewar. Conservative Commonwealth governments attempted to return to a

system of co-ordinate federalism. However, a system of co-operative federalism developed in

the1920s and 1930s in response to both internal and external pressures. Elements of cooperative

federalism included: the establishment of the Australian Loan Council in

response to intergovernmental competition in the loan markets; the co-ordination of economic

management and budgetary policies during the Great Depression; and theestablishment of joint

consultative bodies, usually in the form of ministerial councils.

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CHAPTER-4FEDERALISM ENVISAGED BY THE GOVERNMENT OF THEINDIA ACT, 1935

In India, the historical-process to create the federal-system was different. For long, before 1935,

British India has been administered on a unitary basis. There existed aunitary-system. But after the

end of British-colonies, the unitary system was replaced by a federal-system. The present federal-

system was built on the foundation of the 1935system.The past history of India establishes that in

the absence of a strongCentral-Government, the country soon disintegrates. This belief was

strengthened bythe recent-portion of the country. Therefore adequate precautions have to be

takenagainst any such future contingency by making the centre strong in Indian-Federalism.Owing

to its vastness of territory and variety of people, India could not be governedefficiently as a unitary-

state and so a unitary constitution was out of question.India, such a large country with diverse-

cultures, religions, languages, tribal and ethnicdifferences and even marginal racial variations, with

historical, geographical and political- divergences, cannot bear true faith with democracy and

collective freedomwithout authentic Federal Features.By the act of 1935, the British Parliament set

up a federal system in the same manner asit had done in the case of Canada, by creating

autonomous units and combining theminto a federation by one and the same Act. All powers

hitherto exercised in India were

resumed by the crown and redistributed between the federations and the Provinces by adirect grant.

Under this system, the provinces derived their authority directly from theCrown and exercised

Legislative and executive powers, broadly free from centralcontrol, within a define sphere.

Nevertheless, the Centre regained control through theGovernor's special responsibilities and his

obligation to exercise his individual judgement and discretion in certain matters, and the power of

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the Centre to givedirection to the Provinces.The peculiarity of thus converting a unitary system into

a federal one can be bestexplained in the words of the Joint parliamentary Committee on Indian

Reforms: "Of course in thus converting a unitary state into a federation we should be taking a step

for which there is no exact historical precedent. Federation have commonly resulted froman

agreement between independent or, at least, autonomous Governments, surrenderinga defined part

of their sovereignty or autonomy to a new Central organism. At the present moment the British

Indian Provinces are not even autonomous for they aresubject to both administrative and legislative

control of the Government and suchauthority as they exercise has been in the main devolved upon

them under a statutoryrule-making power by the Governor- General in council. We are faced with

thenecessity of creating autonomous units and combining them into a federation by oneand the

same act."It is well worth remembering the peculiarity of the origin of the federal system in India.

Neither before nor under the Act of 1935, were the Provinces in any sense 'Sovereign'States like the

States of American Union. The Constitution, too, has been framed by the people of India assembled

in the Constituent Assembly, and the Union of India cannot

be said to be the result of any compact or agreement between the autonomous States. Sofar as the

Provinces are concerned, the progress had been from a unitary to a federalorganization, but even

then, this has happened not because the Provinces desired to become autonomous units under a

federal union, as in Canada. The Provinces, as justseen, had been artificially made autonomous,

within a defined sphere, by theGovernment of India Act, 1935. What the makers of the Constitution

did was toassociate the Indian States with these autonomous Provinces into a federal Union,which

the Indian States had refused to accede to, in 1935. Some amount of homogeneity of the federating

units is a condition for their desire to form a federalunion. But in India, the position has been

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different. From the earliest time, the IndianStates had a separate political entity, and there was little

that was common betweenthem and the Provinces which constituted the rest of India. Even under

the Federalscheme of 1935 the Provinces and the India States were treated differently; theaccession

of the Indian States to the system was voluntary while it was compulsory for the provinces, and the

powers exercisable by the Federation over the Indian States werealso to be defined by the

Instruments of Accession. It is because it was optional with theRulers of the Indian States that they

refused to join the federal system of 1935. Theylacked 'the federal sentiments' (Dicey), that is, the

desire to form a federal Union withthe rest of India. But, as already pointed out, the political

situation changed with thelapse of paramountcy of the British Crown as a result of which most the

Indian Statesacceded to the Dominion of India on the eve of the Independence of India.The credit

of the makers of the Constitution, therefore, lies not so much in bringing theIndian States under the

federal system but in placing them, as much as possible, on thesame footing as the other units of the

federation, under the same Constitution. In short,

the survivors of the Old Indian States were, with the minor exceptions, placed under thesame

political system of the old provinces. The Integration of the Units of the twoCategories has

eventually been completed by eliminating the separate entities of Statesin Part A and Part B and

replacing them by one Category of States, by the Constitution(7 th Amendment) Act, 1956.

CHAPTER-5NATURE OF INDIAN FEDERAL SYSTEM

There is difference of opinion among the constitutional jurists about the nature of theIndian

constitution. One view is that it is a quasi federal Constitution and has moreUnitary features than

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federal features.Article 1(1) of our Constitutions says " India, that is Bharat, shall be a Union of

States."While submitting the Draft Constitution, Dr. Ambedkar, the Chairman of the

DraftingCommittee, stated that "although its Constitution may be federal in structure",

theCommittee had used the term "Union" because of certain advantages, these advantages,he

explained in the Constituent Assembly, were to indicate two things, viz., (a) that theIndian

federation is not the result of an agreement by an Units, and (b) that thecomponent units have no

freedom to secede from its.The word "Union" does not indicate any particular type of federation, in

as much as it isused also in the Preamble of the Constitution of the United States- the model of

federation; in the Preamble of the British North America Act (which according to LordHaldane, did

not create a true federation at all); in the Preamble to the Union of SouthAfrica Act. 1909, which

patently set up a unitary Constitution; and even in theConstitution of U.S.S.R. (1997), which

formally acknowledges a right of succession [Art. 72] to each Republic, i.e, unit of the Union. We

have, therefore, to examine the provisions of the Constitution itself, apart from the label given to it

by its draftsman, todetermine whether it presides a federal system as claimed by Dr. Ambedkar,

particularly in view of the criticisms leveled against its federal claim by some foreignscholars.

The difficulty in any treatment of federalism is that there is no agreed definition of afederal State.

The other difficulty is that it is habitual with the scholars on the subject tostart with the model of

the United States, the oldest (1787) of all federal Constitution inthe world, and to exclude any

system that conform to that model from the nomenclatureof that federation. But numerous countries

in the world have, since 1787, adoptedConstitutions having federal features and, if the strict

historical standard of the UnitedStates be applied to all these later Constitutions, few will stand the

test of Federalismsave perhaps Switzerland and Australia. Nothings is, however, gained by

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excluding somay recent Constitutions from the federal class, for, according to the

traditionalclassification followed by political scientists, Constitutions are either unitary or federal.If

therefore, a Constitution partakes some features of both types, the only alternative isto analyse

those features and to ascertain whether it is basically unitary or federal,although it may have

subsidiary variations. A liberal attitude towards the questions of federalism is, therefore, inevitable

particularly in view of the fact that recentexperiment in the world of Constitution making are

departing more and more from the pure type of either unitary or a federal system. The question

whether a State is federal or unitary is one of degrees and the answer will depend upon how many

features it possesses.

5.1 INDIAN CONSTITUTION- FEDERAL OR UNITARYFederal features:

To solve the controversy as the question whether Indian Constitution is federal or unitary, we have

to examine the essential characteristics of a federal Constitution withthe Indian Constitution. Some

of the federal features of the Indian Constitution can besummarized as follows:

1.

Existence of Dual Government-

There can be no federation unless there aretwo sets of governments - one at the centre and the other

at regional level. InIndia, we have the Government of the Union of India at the Centre

andGovernments of various States as regional units of federation. To this extentIndian Constitution

possesses federal element.2.

Distribution of powers-

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Mere existence of central and regional governmentsdoes not make a constitution federal because

this can be possible even in aunitary government where a large country is divided in several

regional unitsfor the sake of administrative convenience. For a federation, distribution of powers

between central government and regional units is essential and thisdistribution should be such as to

ensure substantial independence to central aswell as regional governments. In Indian Constitution

all legislative powers areenumerated in three Lists of the Seventh Schedule. In respect of

mattersenumerated the list I, Union has exclusive power to legislate and in respect of matters

enumerated in List II, the States have exclusive legislative power. ListIII is concurrent list. In

respect of matters enumerated in this list, both Unionand States have power to legislate, The Union

and States have executive powersalso on matters in respect of which they have power to legislate.

Thus, theConstitution provides for distribution of powers ensuring substantialindependence to

governments of both levels.3.

Written constitution-

This is strictly not necessary to constitute a federation but it is a practical necessity that distribution

of powers has to be recorded. Wehave one of the largest written constitutions of the world

4.

Supremacy of the Constitution-

Distribution of powers will be of no use if theconstitution is not treated as supreme and

governments are allowed to violate it.In India, any legislative or executive action of Union or State

government will be of no force if it is against the provisions of the Constitution. Constitution

issupreme. In

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Sub-Committee on Judicial Accountability

Union of India,

theSupreme Court has held that in India, Constitution not the Parliament, issupreme Constitution is

fundamental and higher law and being so it is thetouchstone of limits of powers of various organs

of the State.5.

Independent arbiter of powers-

There must be some independent authority tointerpret the constitution and to resolve the disputes

between central andregional governments The authority need not necessarily be the court,

butgenerally courts are entrusted with this job. Under the Indian Constitution power to interpret the

Constitution rests with the courts and for ensuringindependence of courts, the judges have been

given substantial protection inrespect of their salaries and tenure of service. The judges -of the

Supreme Courtand the High

Court’s

cannot be removed from service except in accordancewith the provisional of Article 124 (4), nor

can their salaries or emoluments bevaried to their disadvantage.6.

Rigid process of amendment-

For a federation it is necessary that power toamend the constitution should not be given exclusively

to centre or regionalunits. Both must participate in the process of amendment, Under Article

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368,certain matters, which can affect federal structure, cannot be amended byParliament alone even

by special majority. At least half of the States must alsoratify.

Thus, all the essential elements of federal constitution are in principleembodied in our constitution.

Besides these, the Upper House to the centre iselected by State Legislatures and in Presidential

elections, members of bothHouses of Parliament as well as of State Assemblies take part. In spite of

allthis our constitution has been branded as quasi-federal by Dr K C Wheare.Some have called it as

unitary with certain federal features Granville Austin inhis book "The Indian Constitution

Cornerstone of a Nation" concluded thatour system, if it could be called federal, could be described

as "Co-operativefederalism", which implies system with three characteristics:(i)

administrative co-operation between central and regional governments,(ii)

partial dependence of the regional governments upon payments fromthe central government and,

(iii)

the use of conditional grants by central governments for promotion of developments in matters

constitutionally assigned to regions.The direct question whether our Constitution is federal or

unitary wasnot seriously considered by the Supreme Court except in

State of West Bengal

v.

Union of India

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1

in which it held by majority that IndianConstitution is not federal. But the issue involved in the case

wasnarrow one, that is, whether Union of India could acquire landed property belonging to state or

states could claim immunity because of federal nature of the, Constitution. However, in In re Under

Article 143,the Supreme Court recognizes that the Indian Constitution is a federalConstitution.

In Keshavananda v. State of Kerala , some of the Judges of the SupremeCourt regarded federal

character of the Indian Constitution as, anessential or the basic feature of the Indian Constitution.

On the other hand, Beg CJ, in State of Rajasthan v. Union of India, observed that aconspectus of the

provisions of our constitution will indicate that,'whatever- appearances of a federal structure our

Constitution mayhave, its operations are certainly judged both by the contents of powerswhich a

number of provisions carry with them and the use that has beenmade of them, more unitary than

federal In Satpal v. State of Punjab,the Supreme court again held that ours is a Constitution where

there is acombination of federal structure with unitary features.In Pradeep Jain v. Union of India",

also the Supreme Court held thatIndia is not a Federal State in the traditional sense of that term. It

is nota compact of sovereign States which have come together to form afederation by ceding a part

of their sovereignty to the federal-State. Ithas undoubtly certain federal features but is still not a

federal State. Ithas only one citizenship, that is, citizenship of India and a unified legalsystem

which extend throughout the country

Unitary features :

21
The following unitary features are relied upon by those who challenge the federalcharacter of the

Indian Constitution:-1.

Process of Formation-

A very weak argument is based on the process of formation of federation. It is said that process of

formation of the Indian

Constitution has been just the reverse. Before the present Constitution wasframed, India was

governed by the Britishers as Unitary State. In State of WestBengal v. Union of India

and Pradeep Jain v. Union of India , this aspect wasgiven undue emphasis. The process of

formation does not affect the federalnature. There are many federations which came into existence

not as a result of a compact between existing states but as a result of division of existing

State.Between Indian States and former provinces, there has been integration butsome bigger

Provinces were divide to form a new State.2.

No separate State Constitutions, single Citizenship-

Equally weak arguments are made on the basis of certain non-essential characteristics whichare

present in some important federal Constitutions. For instance, in manyfederations

State have their separate constitutions and citizenship. In

Pradeep Jain

22
Union of India'

this aspect was also emphasized. In our country provisions regarding organisation of government in

States are incorporated inthe Indian Constitution itself. States do not have separate constitutions as

thereis no provision for dual citizenship, but these matters are incidents of history of a particular

federation and are not essential for co-ordinate functioning of boththe tiers of the government-

Centre and States.3.

Union Control over State Executive.

i.

Appointment of Governors-

The executive head of the state,

e, Governor is appointed by the President and holds office during his pleasure. This byitself does

not affect federal system very much, because in almost all matter,he has to act on the advice of his

ministers but his position is liable to bemisused by the Central Government under certain

circumstances. In fact, it

AIR 1963 SC 1241

23
CONSTITUTION OF USA, SWITZERLAND AND AUSTRALIA

has been used on several occasions to dismiss the Ministry of an opposition party in States or to

appoint a Chief Minister who has not majority supportin the Legislative Assembly as was done by

the Governor of Jharkhandrecently.ii.

Execution of Union laws by State Executive.-

The division of executive powers between the Union and the States is on the basis of division of

Legislative powers. This is provided in Articles 73 (1) and 162, but thedivision is not like

watertight compartments. The laws made by the Unionon concurrent matters will be primarily

administered by States unlessParliament directs otherwise. The executive powers of the State shall,

besubject to and limited by executive powers of the Union.iii.

Delegation of power by the Union-

Even in respect of matters in the Unionlist, Union may delegate its functions to States. Similarly,

under Article258A, the Governor of a State may entrust executive functions of State toUnion or its

officers.iv.

Executive Direction

- Article 256 says that the executive power of a stateshall be so exercised as to ensure compliance

with the laws made byParliament and that executive power of the Union may extend to giving of

directions to the states. Article 257 also provides for executive directions bythe Centre as to the

24
manner in which the state executive power is to beexercised so that exercise of executive power of

States should not impede or prejudice the exercise of the executive power of the Union. If the State

failsto carry out directions, the penalty is provided in Article 365. The Presidentmay declare that the

government of the State cannot be carried on in

accordance with the provisions of the constitution and enforce provisions of Article 356.4.

Control over Legislative Powers of State-

(i)

Legislation by Parliament on State Matters under Articles 249 and252-

Under Article 249, Parliament can legislate on any matter enumeratedin the State list if Council of

States passes a resolution by 2/3d majority of members present and voting that it is in the national

interest. Under Article252, if two or more States pass resolutions that a particular matter

enumerated in State List be regulated by Parliament, then Parliament shall be competent. In pass

legislation and such legislation shall be in force

in

those states or in any other State which adopts it. In fact, these provisions donot affect federal

character of the Indian Union. Legislation under Article252 is expressly authorized by states

themselves and legislation under Article 249 is also indirectly with the consent of the States,

because Councilof States consists of the representatives, of states. Only twelve members

25
arenominated by the President and some members represent Union territories.Moreover, such

legislation is only a temporary measure.(ii)

Implementation of Treaties, Agreements and Conventions-

For implementing any treaty, agreement or convention with any foreign countryor decision of an

international conference. Article 253 authorizesParliament to make Laws for the whole or part of

the country. This provision is necessary. It is the duty of the Union to maintain relations withthe

foreign States. If implementation is left at the mercy of the States, many

international commitments would remain unimplemented or would bedelayed. Actually this

happened in Canada during nineteen thirties.(iii)

Inconsistency of Union and State laws-

Article 254 provides that if anylaw made by State Legislature is repugnant to any provision of law

made byParliament within its authority or to any provision of existing law withrespect to matters in

Concurrent List, then the Parliamentary law or theexisting law, as the case may be, will prevail, It is

immaterial whether Parliamentary law is enacted before or after the enactment of the State law.'(iv)

Presidential assent to State legislation-

Article 200 empowers theGovernor to reserve a Bill for consideration of the President who may

either give his assent or withhold it and require the Governor to send it back to theLegislature with

message. When again passed by the Legislature, it is againsent for the consideration of the

President. This provision is in most of thecases a mere formality. In the case of Kerala Education

26
Bill, however, theBill was returned for suitable amendments but before sending back, opinionof the

Supreme Court was obtained.5.

The Judiciary-

(i)

Unified Judicial system-

United States of America, Australia and someother federations have double judicial system- federal

courts and statecourts, but our constitution provides for unified judicial system like that of Canada.

(ii)

Appointment of Judges-

Appointments of judges of the High Courts andthe Supreme Court are made by the President, who

is also the executive headof the Union Government Power of appointment, no doubt, carries

someinfluence with it but the constitution makers took sufficient precautions.

Once a Supreme Court or High Court Judge is appointed, he cannot beremoved except by the

special procedure mentioned in Article 124(4), Nor can his salaries or privileges be altered to his

disadvantages. In SupremeCourtAdvocates on Record Association v Union of India,

the Supreme Court hasheld that no appointment of Judges of High Court or Supreme Court can

bemade by the President except in conformity with the final opinion .of theChief Justice of India.

This view has been affirmed by the Court in SpecialReference No. 7 of 1998

27
5

.6.

Financial Control-

By system of grants-in-aid, Centre can exercise a lot of control over State activities. But this is not

peculiar in India. This system is nowfollowed in almost all federations and is essential for

cooperative federalism.7.

Emergency Provisions

- When the proclamation of emergency is in operation,Article 250 gives Parliament power to

legislate in respect of matters allotted toState Legislatures. The executive power of the Union

extends to giving of directions as to how the executive power of the State is to be exercised, and

thePresident may modify financial arrangements between Union and States. Incases of failure of

constitutional machinery in a State, Article 356 authorises theCentre to assume all powers of the

State Government. Similarly, in times of financial emergency, Article 360 authorises Centre to give

directions infinancial matters, and all money and financial Bills of the State may be requiredto be

reserved for consideration of the President. These emergency provisionsgive almost complete

control to the Centre over States but this is a temporary phase for abnormal situations. As observed

by Dwivedi J. in Keshavananda v.

(1993) 4 SCC 441.

AIR 1999 SCI

28
State of Kerala,

when the proclamation of emergency is in force, the cardinal principle of federation is merely in

eclipse In other federations also in times of war and emergencies wider powers are conceded to the

centre to cope with thesituation.8.

Power of reorganization-

Under Article 3, Parliament may by law form a newState, increase of diminish the area of any State

ad later its name and boundaries. This is a very sweeping power given to the central legislative

organ.The very existence and identity of a State can be vanished by Parliamentunilaterally. Though

certain checks on the exercise of this power are given inthe provision, yet if the Centre is adamant

the States cannot prevent themeasure.It is true that India was never intended to be a federation in

the strict sense of theterm The framers were aware of the hardships that were faced by

someimportant federations during wars and even in peace time in carrying outnationwide economic

reforms or in implementing international agreements or in checking centrifugal forces threatening

the unity of the nation.The Constituent Assembly purposely Substituted the word "union" in place

of "federation" in Article I of the Constitution to make it clear that federation wasnot the result of

an agreement by States as such no State has right to secede fromit, that the country is one integral

whole and its people, single people livingunder a single imperium derived from a single source.

While adopting federalsystem generally, the framers were keen to preserve the unity of the country

29
andtherefore they included certain provisions, which are opposed to federal principle, to meet

certain exigencies. It is capable of functioning as a federation

AIR 1973 SC 1461,2003

as well as unitary system according to circumstances. In the ConstituentAssembly, Dr.Ambedkar

remarked :"All federal systems including American are placed in a tight mould of federalism. No

matter what the circumstances, it cannot change its form andshape. It can never be unitary. On the

other hand, the draft constitution (of India) can be both unitary as well as federal according to the

requirements of time and circumstances.5.2

DISTINCTIVE FEATURES - INDIA AND U.S.A.

The Constitutional system of India is basically federal, but of course, with strikingUnitary

features.1.

There are many distinctive features of the Indian federal system. In UnitedStates, there is dual

citizenship. An American is a citizen of the United Statesand also of the State in which he lives. In

India, there is a dual polity but singlecitizenship. To quote, " there is only one citizenship for the

whole of India. It isthe Indian Citizenship. There is no State citizenship. Every Indian has the

samerights of citizenship, no matter in what State he resides".2.

Every State in the United States has the right to make or amend its ownConstitution. The Federal

Government has not the power to change theConstitution of any State. In India, no State has the

power to amend its ownConstitution although the Federal Government has the power to amend the

30
StateConstitution under certain circumstances. To quote, " the Constitution of Unionand of the

States is single frame from which neither can get out and withinwhich they must work".

3.

The residuary powers in India are given to the Union Government and theIndian Parliament can

make laws with regard to them. In United States, theresiduary powers are with the States.4.

Rigidity and legalism are considered to be the two evils of a federal polity. Afederal Constitution

has to be a written Constitution, which is usually rigid.Moreover, the people in a federal polity

always talk in terms of legality or illegality of a measure, irrespective of its merits. However, the

IndianConstitution have adopted certain methods to avoid the evils of rigidity andlegalism. It has

provided a long list of Concurrent subjects. A large number of provisions have been made which

are to remain in force until Parliament provides otherwise by law. Power has also been given to the

Parliament tolegislate on matters in the State List under certain circumstances. This is sowhen a

subject assumes national importance. The same is the case when anemergency is declared by

President. The Centre can exercise powers within aState with the consent of the State or State

concerned. Greater facility is givenfor the amendment of the Constitution than that given in foreign

countries.5.

The Constitution becomes unitary in times of emergency. To quote, " all federalsystems are placed

in a tight mould of federalism. In no circumstances can itchange its form and shape. It can never be

31
unitary. On the other hand, the IndianConstitution can be both Unitary as well as federal, according

to requirement of time and circumstances".6.

The Indian federation maintains unity in all basic matters. To quote Dr.Ambedkar, " The Federation

being a dual polity based on divided authority withseparate legislative, executive and judicial

powers for each of the two polities is bound to produce diversities in laws, in administration and in

judicial

protection. Up to a certain point, this diversity does not matter. It may bewelcomed as being an

attempt to accommodate the powers of government tolocal needs and circumstances. But this

diversity when it goes beyond a certain point, is capable of producing chaos and has produced

chaos in many federalStates".7.

The Indian Constitution does not set up the States as rivals to one another or tothe Union. Each is

intended to work harmoniously in its own sphere withoutimpediment by the other, with an over-

riding power of the Union where it isnecessary in the public interest. It has a nice balance of

jurisdictions which hasworked out successfully so far and it is hopes that it will continue to work so

intimes to come with good sense prevailing in all States.8.

The Supreme Court of India and the High Court form a single integrated judiciary having

jurisdiction over all cases arising under various laws- Union,State, Constitutional, Civil and

Criminal. To eliminate diversity of laws, codesof civil and criminal law are placed in the

32
Concurrent List. To maintainuniformity in administration, the Constitution provides that there shall

be All-India services recruited on all India basis which shall be common to the Unionand States.a)

In case of inconsistency between Union and State laws, the Union laws shall prevail. b)

Laws passed by the State may be reserved for considerations of the President bythe Governor.

Some of them have to be specifically reserved and some of themcannot be even introduced or

moved in the State Legislature without the previous sanction of the President.

It should be noted that there is no clear- cut formula or guidelines to decide whether asystem is

federal or not. In the Indian context, it can be said that Indian Constitution is basically federal with

striking unitary features and so has been the attitude of law courtsin India while interpreting the

structure of the Indian Constitution. However, manyStates are not satisfied with Centre-State

relationship and have requested for a changein the fundamental features of the system of

governments.However, the States, especially where the opposition parties or regional parties are

inmajority remain unsatisfied with the present set up of distribution of powers betweenthe Centre

and the State and force the Central Government to appoint SarkariaCommission in 1983 to review

the distribution of powers between the Centre and theState within the purview of the Constitution

of India. Although Sakaria Commissionhad submitted its report in 1987, the main recommendations

of this Commission are yetto be implemented.

CHAPTER-6CONSTITUTIONAL PROVISIONS - MODIFICATION OFFEDERAL PRINCIPLE

IN THE INDIAN CONSTITUTION.

33
In the following constitutional provisions, it is pointed out that the Indian-Constitutioncontains the

modifications of the federal principle:

6.1 Parliament power to form New-States and alter boundaries of existing states:(Art 2&3)Art.2:

gives complete discretion to parliament to 'admit' or 'establish' new-states onsuck terms &

conditions as it thinks fit. Such terms & conditions must, however, beconsistent with the

foundational-principles viz, the basic-structue of the constitution.

Art.3:

Provide that, "parliament can by unilateral-action increase or diminish the-areaof any state or alter

the boundaries of any state or alter the name of any state."The very existence of the State thus

depends upon the "Sweet-will of the UnionGovernment.The power conferred on the Union-

parliament to make territorial-adjustments is better explained on historical-basis:The Government,

of India Act, 1935, which had for the first-time introduced thefederal- system in India deliberately

created the constituent-units of the federation,although they had no organic-roots in the past. The

makers of the present constitutionwere aware of peculiar- condition under which & the reasons for

which the states wereformed & their boundaries were defined & so they deliberately adopted the

provisionsin Art. 3 with a view to meeting the possibility of the redistribution of the statesterritory

after the integration of the Indian- States.

The changes thus contemplated (work-our) illustrate the working of the peculiar &striking feature

of the Indian-Constitution.

6.2 Parliament's power to make law on State-matters:Article 249:

Provides that, "if the upper House (Council of states) of theUnion-parliament passes a resolution,

supported by not less than 2/3 rd of the members present & voting, that it is necessary in the

34
'National-Interest' that parliament shouldmake laws with respect to any matter enumerated in the

state-list, it would becompetent for parliament to make laws for the states with respect to that

matter to beoperative for such period not exceeding 1 year, as may be specified therein.In normal-

course this cannot be done unless the Constitution is amended. This power isgiven to parliament by

the council of states itself by passing a resolution supported by2/3

rd

majority of the members present. Thus, in effect by this device the constitution isamended by the

agreement of majority of the states.Thus Article 249 does not place the states in a subordinate-

position..

Article 250:

Provides that, "parliament shall have the power to make laws for thewhole or any part of the

territory of India with respect to any matters enumerated in thestate-list when the proclamation of

emergency is in operation."

Article 251:

Provides that Parliament have the power to make laws on State-mattersunder the Article 249 (in

national-interest) and Article 250 (under Proclamation of emergency). In both cases the power of

the state legislature to deal with matters fallingin the state list is not abrogated. The Legislature of a

state can thus make a law on thosematters which has been taken over by the Union-Legislature

But in case of a conflict or inconsistency between a Union & a State-law, the former will prevail.

Article 253:

Provides that" parliament has power to make any law for the whole or any part of the territory of

India for implementing any treaty, agreement or convention withany other country or countries or

35
any decision made at any international conference."Ex: Legislations relating to T.R.I.P.S., ensuring

India's conformity with WTOmembership, are being enacted under this provision.Questions are

also being raised about the legal-tradition in our country under whichtreaties become operative &

binding without prior participation of parliament in their making. They can be entered into &

implemented by the Union executive in exercise of its executive power under Article 73

6.3

Administrative-relations between the Union and States :

The Union Government is empowered to issue administrative-directions to the states inrelation to

certain matters, these directions are binding on the states:

Article 256:

Provides that, it shall be the duty of the state to exercise itsexecutive-powers so as to ensure that

due-effect is given with in state to every Act of Parliament & to every existing law which apply in

the state. This is aconstitutional-duty of every state. The Govern of India is entitled to given

directions tothe state-government regarding the duly which is imposed upon it by this article.

Article 257:

Provides the control of the Union over state in certain cases:a)

The manner in which the executive-powers of the state shall be exercise so asnot to impede or

abridge the executive-powers of the Union. b)

The construction & maintenance of means of communication, declared to be of national or

military-importance; &

36
c)

Measures to be taken for the protection of Railways within the start.d)

The authority given to the centre to enforce its administrative-directions againsta state which fails

to comply with them is indented to "ensure-harmony" btw theUnion & the state. If a state exercises

its executive authority as to impede or obstructs the execution of Union-laws or services, that states

exhibits a revoltagainst the central government & hence to "maintain the integrity of thecountry". It

is right that the Union has been empowered to intervene.

6.4 Distribution of Legislative-power between the Union & the states (Article 246)

The Constitution in making the distribution of legislative-powers that the union & thestates, follows

the government, of India 1935. It enumerates various items of legislationin three- lists given in 7

th

Schedule:List I The Union ListList II The State List 7

th

ScheduleList III The Concurrent ListThe parliament has exclusive powers of legislation with

respect to 97 items in List I TheState Legislatures have exclusive-powers with respect to 66 items

in List II BothParliament & state Legislatures can make laws in respect to 47 items in List III.

6.5 Residuary powers of Legislation : (ARTICLE 248)

Parliament has exclusive power to make any law with respect to any matter notenumerated in the

concurrent. List or State-List. Such power shall include the power of making any law imposing a

tax not mentioned in either of those lists.

37
This Art. Assigns "Residuary-powers" of legislation exclusively to parliament Entry 97of List I,

Schedule VII to the constitution read with art. 246(i) also lays down thp.t parliament has exclusive-

power to make laws with respect to any mater not given inList II or List III, including any tax not

mentioned in either of those lists.Complex modern governmental-administration, with the

advancement of society,expanding horizons of scientific & technical-language, in a federal-set up

providing for distribution of legislative-powers coupled with the power of judicial-review may

raisesuch situations that a subject of legislation may not squarely fall in any specific-entry inthree

list.In such a situation parliament would have power to legislate on the subject in theexercise of

residuary-powers under this Article & Under Article 246 (1) read with Entryof List I.

6.6 Emergency-provisionsArticle. 352

: Provides that "if the president is satisfied that a gave emergency existswhere by the security of

India or any part of the territory is threatened, weather by 'Wan'or 'external' aggression or 'armed-

rebellion, he by proclamation, make a declaration tothat effect.When the proclamation of

emergency is made under Article. 352, the normaldistribution of power between the centre & the

states undergo a vital-change.

Parliament is empowered to make laws with respect to any matter enumerated in thestate- List.The

centre is empowered to give directions to any state as to manner in which the state'sexecutive

power to be exercised.Further, the president may be order, direct that all or any of the provisions of

Article278 to 279 relating to distribution of revenue between the centre & the state shall takeeffect

with such exception or modifications as he thinks fit.

Article 356:

38
Provides that, " if the president, who is the head of the Union-executive issatisfied that the

Government, of a State cannot be carried on in accordance with the provisions of the constitution

he can issue a Proclamation to that effect. He can thenassume all the functions of the government of

the state, including the powers of theGovernor."The only exception is that he cannot assume any of

the powers exercisable by the HighCourt.

Article 360:

Provides that, "if the President is satisfied that a situation has arisen whichthreatens the 'Financial

stability' or credit of India or any of its units, he can declare aFinancial-emergency. In such an event

the President can issue necessary directions,including order for the reduction of salaries and

allowances of public-servants belonging to union and the states. All Money-bills passed by the

state-legislaturesduring the period of financial- emergency are also subject to the control of the

centre.

Effect of Emergency-provisions on Federalism:

The emergency-provisions which come into operation only on the happening of the'specific-

contingencies' do not modify or destroy the federal system. It is rather a meritof the constitution

that it visualizes the contingencies when the strict application of theFederal- principle might

destroy the basic assumptions on which our constitution is built. The Indian constitution by

adapting itself to the changed circumstancesstrengthens the Government in its Endeavour to

overcome the crisis.In an emergency, the behavior of each federal-constitution is very much

different fromthat in peace time.For example in Swiss Constitution, which is a federal Constitution

expressly empowersthe federal government to intervene on its own initiatives if the external-

disorder mightoccur which endanger the safety of the nation.

39
CHAPTER-7JUDICIAL INTREPRETATION

The debate whether India has a 'Federal Constitution' and 'Federal Government' has been grappling

the Apex court in India because of the theoretical label given to theConstitution of India, namely,

federal, quasi-federal, unitary. The first significant casewhere this issue was discussed at length by

the apex Court was

1. State of West Bengal V. Union of India

19

The main issue involved in this case wasthe exercise of sovereign powers by the Indian states. The

legislative competence of theParliament to enact a law for compulsory acquisition by the Union of

land and other properties vested in or owned by the state and the sovereign authority of states

asdistinct entities was also examined. The apex court held that the Indian Constitution didnot

propound a principle of absolute federalism. Though the authority wasdecentralized this was

mainly due to the arduous task of governing the large territory.The court outlined the

characteristics, which highlight the fact that the IndianConstitution is not a "traditional federal

Constitution". Firstly, there is no separateConstitution for each State as is required in a federal'state.

The Constitution is thesupreme document, which governs all the states. Secondly, the Constitution

is liable to be altered by the Union Parliament alone and the units of the country i.e. the States

haveno power to alter it. Thirdly, the distribution of powers is to facilitate local governance by the

states and national policies to be decided by the Centre. Lastly, as against afederal Constitution,

which contains internal checks and balances, the IndianConstitution renders supreme power upon

the courts to invalidate any action violativeof the Constitution. The Supreme Court further held that

40
both the legislative andexecutive power of the States are subject to the respective supreme powers

of the

Union. Legal sovereignty of the Indian nation is vested in the people of India. The political

sovereignty is distributed between the Union and the States with greater weight age in favor of the

Union. Another reason which militates against the theory of the supremacy of States is that there is

no dual citizenship in India. Thus, the learned judges concluded that the structure of the Indian

Union as provided by the Constitutionone is centralized, with the States occupying a secondary

position vis-a- vis the Centre,hence the Centre possessed the requisite powers to acquire properties

belonging toStates.As against this opinion, was the judgment rendered by Justice Subba Rao, the

greatchampion of State rights. Justice Subba Rao was of the opinion that under the schemeof the

Indian Constitution, sovereign powers are distributed between the Union and theStates within their

respective spheres. As the legislative field of the union is muchwider than that of the State

legislative assemblies, the laws passed by the Parliament prevail over the State laws in case of any

conflict. In a few cases of legislation whereinter-State disputes are involved, sanction of the

President is made mandatory for thevalidity of those laws. Further, every State has its judiciary

with the State High Court atthe apex. This, in the opinion of the learned judge does not affect the

federal principle.He gives the parallel of Australia, where appeals against certain decisions of the

HighCourts of the Commonwealth of Australia lie with the Privy Council. Thus the

Indianfederation cannot be negated on this account. In financial matters the Union has

moreresources at its disposal as compared to the states. Thus, the Union being in charge of the

purse strings, can always, persuade the States to abide by its advice. The powersvested in the union

41
in case of national emergencies, internal disturbance or externalaggression, financial crisis, and

failure of the Constitutional machinery of the State are

all extraordinary powers in the nature of safety valves to protect the country's future.The power

granted to the Union to alter the boundaries of the States is also anextraordinary power to meet

future contingencies. In their respective spheres, bothexecutive and legislative, the States are

supreme. The minority view expressed byJustice Subba Rao has consistency with the federal

scheme under the IndianConstitution. The Indian Constitution accepts the federal concept and

distributes thesovereign powers between the coordinate Constitutional entities, namely, the

Unionand the States.The next landmark case where the nature of the Indian Constitution was

discussed atlength was

2. State of Rajasthan V. Union of India.

The learned judges embarked upon adiscussion of the abstract principles of federalism in the face

of the express provisionsof the Constitution. It was stated that even if it is possible to see a federal

structure behind the establishment of separate executive, legislative and judicial organs in theStates,

it is apparent from the provision illustrated in Article 356 that the UnionGovernment is entitled to

enforce its own views regarding the administration andgranting of power in the States. The extent

of federalism of the Indian Union is largelywatered down by the needs of progress, development

and making the nation integrated, politically and economically co-ordinated, and socially and

spiritually uplifted. TheCourt then proceeded to list out some of the Constitutional provisions

which establishthe supremacy of the Parliament over the State legislatures.

42
AIR 1977 SC 1361

In conclusion the apex Court held that it was the 'prerogative' of the Union Parliamentto issue

directives if they were for the benefit of the people of the State and were aimedat achieving the

objectives set out in the Preamble. The issue of federalism was carriedforward in:3. S

.R.Bommai

V.

Union of India.

Four opinions were rendered, expressing varyingviews. Justice Ahmadi opined that in order to

understand the true nature of the IndianConstitution, it is essential to comprehend the concept of

federalism. The essence of thefederation is the existence of the Union and the States and the

distribution of powers between them. The significant absence of expressions like 'federal' or

'federation' in theConstitution, the powers of the Parliament under Articles 2 and 3, the

extraordinary powers conferred to meet emergency situations, residuary powers, powers to

issuedirections to the States, concept of single citizenship and the system of integrated judiciary

create doubts about the federal nature of the Indian Constitution. Thus, itwould be more appropriate

to describe the Constitution of India as quasi- federal or unitary rather than a federal Constitution in

the true nature of the term. As opposed tothis, Justice Sawant and Justice Kuldip Singh regarded

democracy and federalism asessential features of the Indian Constitution. The overriding powers of

the Centre in theevent of emergency do not destroy the federal character of the Indian Constitution.

Thelearned judges elaborated upon the scope and justified use of the power conferred onthe

43
president by Article 356 which will not restrict the scope of the independent powersof the

respective States for" every State is constituent political unit and has to have anexclusive Executive

and Legislature elected and constituted by the same process as theUnion Government."

JT(1994) 2 SC 215, (1994) 3 SCC 1, AIR 1994 SC 1918

In the opinion of Justice Ramaswamy, the units of the federation had no roots in the past and hence

the Constitution does not provide mechanisms to uphold the territorialintegrity of the States above

the powers of the Parliament. The end sought to beachieved by the Constitution makers was to

place the whole country under the controlof a unified Central Government, while the States were

allowed to exercise their sovereign powers within their legislative, executive and administrative

powers. Theessence of federalism lies in the distribution of powers between the Centre and

theState. Justice Ramawamy declared the Indian structure as organic federalism, designedto suit the

parliamentary form of Government and the diverse conditions prevailing inIndia. Justice Jeevan

Reddy and Justice Agarwal opined that the expression federal or federal form of government has no

fixed meaning. The Constitution is also distinct incharacter, a federation with a bias in favour of the

Centre. But this factor does notreduce the States to mere appendages of the Centre. Within the

sphere allotted to themthe states are supreme.

4. Keshvananda Bharti v. State of Kerala

22

44
The basic structure this case, some of the Judges in full Constitutional Bench expressedfederalism

as one of the basic features of the Indian Constitution.

Rajamannar Commission

In 1969, the Government of Tamil Nadu, dissatisfied with the constitution, appointed aRajamannar

Committee, "to examine the entire question regarding the relationship btwthe centre & the states in

federal set up, with reference to the provisions of theconstitution of India & to suggest suitable

amendments to the constitution so as tosecure to the states the utmost autonomy"

The committee in its report issued in 1971 criticized certain aspects of the Indian-constitution

because they were not reconcilable.The Committee accepted the position that the power vested in

the centre "does notreduce the states of the state to that of administrative-units in a unitary

government as inthe days of the British role.The committee suggested some modifications in the

constitutional -provisions relatingto the distribution of legislative & taxing powers emergency

etc.The proposals made by Rajamannar Committee suffer from an extreme over-statementof the

case for the state-autonomy.These proposals did not evoke much public-enthusiasm & were

endorsed neither byany state-government nor by any All India political party & the report became

adead-letter.

Sarkaria-Commission

In 1983, in response to an insistent demand to review the Central-State relations, thecentral

government appointed the Sarkaria Commission under the chairmanship of Justice R.S. Sarkaria, a

retired Judge of a Supreme Court. The limitations on thecommissions-term of inquiry was that, in

making its recommendations, the commissionwas expected to ensure that they were within the

constitutional-provisions whichsafeguard the independence, unit& integrity of the country.

45
The commission presented its report in 1988.It has rejected the demand for curtaining the powers of

the centre saying that a strongcentre is necessary to preserve the unity & integrity of the

country.The commission's view is that there is no need for drastic changes in the existing-

provisions of the constitution.It its view the fundamental-provisions of the constitution have done

reasonably well&with stood the stresses & strains of heterogeneous society in throes of change

In view of these changed conditions, the Constitution makers have made various provisions in the

Constitution itself to ensure working of cooperative federalism inIndia In the Indian Constitution,

following provisions seek to establish cooperativefederalism:1.

Use of Legislative powers

- Though under Article 246 read with three lists of the VII Schedule there is detailed distribution of

powers between the Union andStates, yet both Union and States have been given power to legislate

on mattersenumerated in List III, i.e., Concurrent List The State Legislature may regulatethe local

aspects of the subjects mentioned therein unless the Parliamentchooses to cover the whole field.

Article 249 provides that when the Council of States passes a resolution by two-third majority of

the members present andvoting that it is necessary or expedient in the national interest that

Parliamentshould male law on any matter enumerated in State List. It shall be lawful for Parliament

to make law for the whole or any part of the territory of India withrespect to such matter while

resolution is in force. Such resolution can remain inforce for a maximum period of one year. Its

operation can be extended by freshresolutions for one year so long as necessary.Under Article 252

46
if legislatures of two or more States pass resolutions that a particular matter in State List should be

regulated by Parliament, it would belawful for Parliament to pass an Act for regulating such

matter.2.

Co-operation in Administrative relations-

According to Articles 73 and 162,executive powers of the Union and States are co-extensive with

legislative powers yet both the Articles provide that in any matter with respect to which both

Parliament and State Legislatures have power to make law. States shall

have executive power subject to provisions of the Constitution and law made byParliament. Articles

256 and 257 empower Union executive to give directionsto State executive. Under Article 258

Centre can, with the consent of theGovernor, assign its functions to State and similarly under

Article 258-A, theStates can, with the consent of the Government of India, assign their functionsto

the Central executive.3.

Full faith and credit to public acts, records and Judicial proceedings-

Article 261 provides that full faith and credit shall be given throughout theterritory of India to

public acts, records and judicial proceedings of the Unionand of every State. This provision is

similar to that contained in Article IV of theU.S Constitution.4.

Resolution of Inter-State water disputes-

47
Article 262 authorises Parliamentto make laws to provide for adjudication of any dispute or

complaint withrespect to the use, distribution or control of waters of any inter-state river or river

valley5.

All India Services-

Article 312 provides that if the council of States declare bya resolution supported by not less than

two-thirds of members present andvoting that it is necessary or expedient in the national interest to

create one or more all India Services, Parliament shall be competent to make law to providefor such

all India Services.6.

Exemption from taxes-

Article 285 provides for exemption of properties of theUnion from State taxes arid similarly Article

289 exempts State properties fromUnion taxes.7.

Financial co-operation-

The whole scheme of distribution of taxing powers between the Union and the States is based on

co-operation between the two.

i.

Some taxes are levied by the Union but are collected and appropriated bythe States, e.g., such

stamp duties and such excise duties on medicinaland toilet products as are mentioned in the Union

List.

48
9

ii.

Some taxes are imposed and collected by the Union but are assigned toStates, such as tax on sales

and purchases where such sale or purchasetakes place in the course of inter-State trade or

commerce.

10

iii.

Some taxes are levied and collected by the Union but are distributed between the Union and the

States, such as taxes and duties mentioned inthe Union list, which are not mentioned in Article 268.

11

ii.

Apart from these provisions, Article 275 also makes provision for grants-in-aid to States.8.

Finance Commission-

Article 280 provides that the President shall, within twoyears from the commencement of the

Constitution and, thereafter at theexpiration of every fifth year or at such earlier time as. he

considers necessary, by order constitute a Finance Commission which shall consist of a

Chairmanand four other member to be appointed by the President.It shall be the duty of the

Commission to make recommendations to the President as to-.a)

49
distribution of net proceeds of taxes between the Union and States, b)

principles which should govern grants-in-aid to states,c)

measures needed to augment the Consolidated Fund of a State to supplementthe resources of

Panchayats in the States on the basis of recommendation made by the State Commission;

Art. 268

10

Art. 269

11

Art. 270.

d)

Measures needed to augment the Consolidated Fund of a State to supplementthe resources of

municipalities in the State on the basis of recommendationsmade by the State Finance

Commission.e)

Any other matter referred to by the President.9.

Planning Commission-

50
There are certain extra-constitutional bodies whichdeal with the co-ordination between the Union

and States. The PlanningCommission is the most important such body. However, in the Concurrent

List,entry. 20 provides for economic and: social planning. Being in Concurrent List both Parliament

and State Legislatures are competent to make law providing for Planning Commission. States have

also constituted Planning Commission.10.

National Development Council-

National Development Council wasconstituted in 1952. Prime Minister is the Chairman of the

Council. Allmembers of Central Cabinet, expert members of Planning Commission, Chief Minister

of all states and representatives of Union Territories are member of theCouncil.The Council was

constituted mainly to establish rapport between PlanningCommission and States. Its functions are

to prepare directives for making

national

plans, to discuss the plans prepared by the Planning Commission andmake estimates of resources

for plans and to suggest for their augment.11.

Zonal Councils.- For the first time Zone Councils were constitutedduring the regime of Pt. Jawahar

Lai Nehru at the instance of Home Minister Pandit Govind Bailabh Pant under the States Re-

organisation Act, 1956. Butduring the regime of Mrs. Indira Gandhi they remain completely

neglected. Thefunctions of Zonal Councils are almost same as mentioned in Article 263

(c).Therefore, Sarkaria Commission recommended their constitution under Article

51
263 so as to provide them Constitutional Status. Their reorganisation is alsonecessary for the reason

that Home Minister is their Chairman. He has no timeto preside over these councils. There are six.

Zonal Councils.1.

Northern Zonal Council2.

Southern Zonal Council3.

Eastern Zonal Council4.

Western Zonal Council5.

Central Zonal Council6.

North-Eastern Zonal CouncilFive Zonal Councils (Northern, Southern, Eastern, Western and

Central) wereconstituted by States Reorganisation Act, 1956 and North- Eastern Council

wasconstituted by the North- Eastern Council Act, 197112.

Authority under Article 307-

Article 307 provides that Parliament may by lawappoint such authority as it considers appropriate

for carrying out the purposesof Articles 301, 302, 303 and 304. In U.S.A., Inter-State

CommerceCommission was constituted m 1887 In Australia, too, Inter- State commissionwas

52
constituted in 1912 under Sections 101 and 103 of the AustralianConstitution but the High Court of

Australia held in

New South Wales

Commonwealth,

27

that Judicial powers could not be conferred on suchcommission in view of Strict separation of

powers under the constitution. As itcould not be effective without such powers, it was allowed to

lapse In India nosuch commission has been constituted but the Sarkaria Commission in its

reporthad recommended its constitution.

13.

Inter-State Council-

Article 263 authorises the President to establish aninter-state Council and to define the nature of

duties to be performed by it and tomake provisions for its organization and procedure Thus, this

body will enjoyconstitutional status Sarkaria Commission had also recommended itsconstitution

and organization

12

. As a consequence of recommendations of theSarkaria Commission the Government of India

decided to constitute Inter-StateCouncil. Inter- State Council Order, 1990 provided that the Prime

Minister shall be the President of the Inter-State Council and the following shall be membersof the

Council-a)

53
Chief Ministers of all States; b)

Administrators of Union Territories not having Legislative Assembly,c)

Six Ministers of Central Cabinet nominated by the Prime Minister.The Order also provides that

there shall be at least three meetings of the Council in ayear.

8.2 Recent developments in Indian Federalism

13

1.

Firstly, the 73

rd

and 74

th

amendments of the Constitution in 1992 have created athird-tier of local-governments i.e. the

Panchayats and Municipalities. Of course these amendments have no impact on central state

relations but theyencourage federal-tendencies at the base.2.

With reference to Article 356, the Supreme Court in S.R. Bommai v. Union of India emphasized the

federal-character of the constitution and has imposedseveral procedural restraints on the exercise of

power by the centre.

54
12

Sarkaria Commission Report (1988) Para 9.6.01- 9.6.06

3.

In quick succession, once in 1987 and again in 1998, the President has asked thecentral-Cabinet to

reconsider its advice to impose President's role under Article356. On both occasions the cabinet

dropped its recommendations. TheUnion-Government has become very cautious in exercising its

power under Article 356. For quite some-time now the power has not at all been exercises.4.

With the installation of "Coalition-Government " at the centre since 1996consisting of political

parties ruling in different states, the central governmenthas always to seek the cooperation of the

states.5.

This has changed the real-politics of the country which is not moving towards afederal- government

even through the constitution may not be federal in theclassical-description of K.C. wheare.6.

A centre state commission has again been constituted in 2007 which is to look into the

developments since the last commission, arising particularly in the lightof globalization.

CHAPTER-9CONCLUSION AND SUGGESTIONS

Dr. B.R. Ambedkar, one of the chief architects of the Indian Constitution said: "Our Constitution

would be both Unitary as well as Federal according to the requirements of time and

55
circumstances.In historical as well as present context, the above statement is fully correct

because:federalism is not static but a dynamic concept", it is always in the process of evolutionand

constant adjustments from time to time in the light of the contemporary needs thedemands being

made on it.For making Indian Federalism more robust and viable, the differences between thecentre

and the state must be sort out so that India may successfully meet thegreat-challenges of difference,

external and internal -security and socio-economicdevelopment. It is very necessary that neither the

federal set-up becomes unitary nor that it becomes too lose and weak, affecting the unitary and

integrity of the nation.As India is a developing nation, federal government is necessary for it to

bring progress. India is a country with unity in diversity. There are so many states that areunique in

their cultures and traditions and still feel strongly the oneness among them.As each state has its

own way of lifestyle and culture, it is important to follow federalform of government in India. As

also the Constitutional laws of India suit the federalgovernance, India requires federal ruling to

maintain national integration. Indians arehaving lot of differences in their language, culture or

lifestyle and hence live as

different states. But all Indians feel that they are all one and belong to only one country.Therefore,

India deserves to have Federal Government.It is time to undertake a study of Indian Federalism

with a view to evaluate the trends,frictions and difficulties which have developed in the area of

inter-governmentalrelations and to seek to evolve ways and means to meet the challenging task of

makingthe Indian federation a more robust, strong and workable system so that the countrymay

meet the tasks of self- improvement and development.The responsibility lies on not only the jurists

and policy framers, but also the citizens of the country to work in a harmonious manner for the

development of the country

56
BIBLIOGRAPHY

1.

List of sources

list of books referred:-

Indian Constitutional law by Prof MP Jain, 6

lh

Edition 2010, published by Lexis Nexis Butterworths, Wadhwa Nagpur.

Constitutional Law of India by Prof. G.S. Pande, Tenth Edition 2007, published by M/s University

Book House (P) ltd.

Introduction to the Constitution of India by Dr. Durga Basu, 19

th

EditionReprint 2006, published by Wadhwa and Company Law Publishers

57
Constitutional law of India by V.D. Mahajan, Seventh Edition 1991, published by Eastern Book

Company, Lucknow

Constitutional Law of India by Prof. Narendra Kumar, published by Allahabadlaw Agency

2.

List of websites referred :-

www.wikipedia.com

www.legalserviceindia.com

www.ebc-india.com

www.thehindu.co.in

3.

58
List of cases referred:-

Keshavananda v. State of Kerala, AIR 1973 S.C. 1461.

State of Rajasthan v. Union of India, AIR 1977 S.C. 1361.

Satpal v. State of Punjab, (1982) 1 S.C.C. 12, 16.

Pradeep Jain v. Union of India, AIR 1984 S.C. 1420, 1427.

State of West Bengal v. Union of India, AIR 1963 S.C. 1241

In re Under Article 143, AIR 1965 S.C. 745, 762

Supreme Advocates on Record Association v. Union of India, (1993) 4 S.C.C.441

59

Special reference of No.l of 1998, AIR 1999 S.C. 1

S.R.Bommai v. Union of India, J.T. (1994) 2 S.C. 215, (1994) 3 S.C.C. 1, AIR 1994 S.C.1918

Constitutional law of India by Rajendra D. Anbhule, 2010, 2

nd

Edition.

AIR 1963 SC 1241

AIR 1973 SC 1461.

11

AIR 1984 SC 1420 1427.

13

AIR 1984 SC 1420, 1427

15

AIR 1984 SC 1420, 1427.

23

Constitutional law of India by Kailash Rai. Pg 46

60
CHAPTER SIX

EUROPE’S CONSTITUTIONAL FEDERALISM

The dictionary definitions of a federation are

“1. The formation of a political unity, with a central government, by a number of

separate states, each of which retains control of its own internal affairs. 2. A

federated body formed by a number of nations, states, societies, unions, etc., each

retaining control of its own internal affairs.”1

This definition is clear, but then isn’t the European Union a federation already? All

member states of the European Union are very independent and the European

Parliament, European Council and the European Commission can be seen as its

government. First, this chapter will further look into the European integration and

the European institutions and bodies. Next, the differences between the

contemporary European Union and a federal Europe will be investigated. Finally, the

opinions of the proponents and opponents of a federal Europe will be described.

Already from the start of the European Coal and Steel Community in 1950, many

saw a future of further European integration. An ambitious idea of integration is

Europe becoming a federation, sometimes also called The United States of Europe 2,

1 Viewed on: http://dictionary.reference.com/browse/federation


2

61
named after the (often seen as successful) example of the United States of America.

There are many who support this view of a federal Europe. However, the economic

crisis, negative press and the reluctance of national governments to let go of power,

have seriously damaged the positive view of a federal Europe. For these and many

other reasons, including the importance of national and regional identities in an age

of globalization some prefer a nation state approach to further European integration.

European integration

As of 1950, the European Coal and Steel Community started to unite European

countries economically and politically in order to secure lasting peace. Belgium,

France, Germany, Italy, Luxembourg and the Netherlands were the first members of

this early European cooperation. The idea came into existence that countries that

trade with one another become economically interdependent and so are more likely

to avoid conflict. In 1957, the European Economic Community (EEC) was created

after this idea to increase economic cooperation3. What began as a purely economic

union has evolved into an organisation spanning many policy areas. The name

change from the EEC to the European Union (EU) in 1993 reflected this.

The EU is founded on the rule of law: everything that it does is based on treaties,

voluntarily and democratically agreed by all member countries4. The treaties are

negotiated and agreed upon by all the EU Member States and then accepted by their

parliaments or by referendum. A treaty is a binding agreement between the member

countries and it sets out EU objectives, rules for EU institutions, how decisions are

3
4

62
made and the relationship between the EU and its member countries5. Decisions

within the European Union are made by the various European institutions. The

European Parliament represents the citizens of the member states and is directly

elected by them. The European Council consists of the national and EU level

leaders. The European Commission represents the interests of the European Union as

a whole and its members are appointed by national governments. In short, the

European Commission proposes new laws, and the Parliament and Council adopt or

reject them. The Commission and the member countries then implement them6.

What do we mean by Federal Europe? Is the EU already a


federation?

There is a historical link between federalism and democracy, as it was perfectly

shown by the creation of the United States of America. Most federations have been

born as a consequence of a voluntary, citizen-based, social contract. The federal pact

has been an instrument to set common sovereign powers among pre-existing

political entities. Typically the competencies allocated to the central government in a

federation included internal security, foreign affairs, military and taxes to finance the

provision of these public goods. It is important to point out that in the present-day

EU most of the public goods provided by the Union are financed not through federal

taxes but by national contributions. The key elements of the federal pact are mainly

two, which are not necessarily found in a confederation. Firstly, citizens enjoy a

5
6

63
basic and common set of rights, regardless of their state of origin, and they can be

protected by a federal court. Secondly, citizens have the right to elect the federal

authorities, which are not merely appointees or delegates from the federated units.

Thus, a federation creates a unit of power, with direct legitimacy from the citizenry.

According to the elements pointed out above, some scholars consider that the EU is

already a federal structure, or at least a quasi-federal one. There is a catalog of

competencies, a parliament with legislative power elected by its citizens, and even a

government if we take into account the precedent of Jean-Claude Juncker’s election.

In addition, as is typical in many federal states, the EU has a citizen’s chamber (the

European Parliament) and a state’s chamber (the EU council). However, in order to

properly speak about federalism, the EU would still need some fundamental

elements: democratic legitimacy of all its institutions, something that reflects the

existence of primary sovereignty, the capability to raise taxes in order to finance the

exertion of its competencies, and the ability to act effectively in the international

sphere. At this moment the sovereignty still resides largely within the States.

Besides, the existence of the unanimity rule in several fields such as the fiscal and

social policies, the exclusive competency of the Council in foreign affairs and

defense, the de facto intergovernmental Commission, and other elements call in

question the existence of a true federation. The European Union is an international

innovation, combining intergovernmental/confederal and supranational/federal

elements. At best, we can say that the EU is “a federation-in-progress”. Which are

the key missing bits?:

64
a) All EU legislation should be produced according to the co-decision method and by

qualified majority voting, including foreign affairs and defense;

b) Creation of a pan-European constituency;

c) A supranational European Commission, elected by the European Parliament and

the Council of the European Union and not by the member states;

d) A European Parliament endowed of the right to perform legislation and introduce

taxes at EU level (jointly with the EU Council);

e) Limitation of the European Council to the role of collective chief of state;

f) Creation of interpersonal solidarity mechanisms such as EU unemployment and

elderly health insurance;

g) A single voice in international affairs and security.

However, we must admit that a Federation treaty could hardly be agreed upon

among all current states. Perhaps a minimum of pro-European countries could thus

initiate a cooperation towards the desired European federation, with a federal core

emerging within the current eurozone.

Can federalism only adopt the form of restrictive fiscal federalism


or become a force for growth?

65
The sovereign debt crisis which most of the Eurozone countries have endured over

the last years highlights the challenges the Economic and Monetary Union (EMU)

should be able to cope with to be sustainable as a multilevel system of fiscal and

economic governance. The main challenges are three: 1) how to enforce fiscal

discipline; 2) how to dwindle the structural inequalities between rich and poor

countries; 3) and how to prevent and tackle asymmetric shocks in an efficient

manner. In practice, these are challenges that all federal, multilevel or fiscally

decentralized systems face when allocating fiscal power to different levels of

government, and likewise when attempting to find the middle ground between

centralization and decentralization. At its inception, the design of the Economic and

Monetary Union (EMU) had the makings of an extreme system of fiscal governance

where the units retained the fiscal policy, including in full the taxing power, while

spending was limited (within the limits of the Growth and Stability Pact of 3 per cent

of GDP government deficit). The possibility of a bailout from the centre was

excluded. Regarding this first challenge, it was thought that fiscal discipline should

come about as a result of market exposure. In addition to this and the spending limit,

states were also supposed to follow the broad guidelines on economic policy issued

by the EU Council every three years. And the markets were supposed to lend money

at a rate depending on how fiscally healthy every state was. However, the global

financial crisis erupted in 2008 proved the institutional design of EMU lacked

effectiveness and credibility. Up to that moment, the cost of funding for most Euro

area economies had been similar, but with the crisis it became clear that markets did

not consider that all Euro countries deserved comparable lending rates. As a result,

66
the EU member states were forced to abandon the strict policy of no-bailouts in

order to preserve the stability of the single currencies. The response was to create a

temporary financial emergency mechanism and, later, a permanent one, the

European Stability Mechanism, responsible for lending to Euro countries unable to

finance themselves at reasonable market rates. The second challenge is to what

extent a currency area and a single market are capable of resisting inequalities and

structural imbalances between rich and poor regions and creditor and debtor

countries, and how to address them either through effective economic coordination

or through fiscal tools such as a central spending power, some kind of transfer

mechanism or the use of taxation at a central level as an automatic equalization

system. Following from the above, how to prevent and counter these asymmetric

shocks poses the third challenge. In practice, the EU faces a crucial choice between

two ideal models of fiscal integration: the “surveillance model”, where states

continue to maintain all taxing powers and where the EU is just a mere enforcer of

discipline; or the “classic fiscal federalism model”, where the EU acquires its own

sphere of fiscal authority and thus its own fiscal tools for stabilization and where

different fiscal functions are attributed to different levels of government.

a) The “surveillance model” (also called ‘restrictive


fiscal federalism’)

This could be considered the natural progression of the current status quo. In this

model, Member States continue to retain full fiscal taxation powers and,

consequently, they are the only ones that can raise revenues, while retaining the

competence to conduct the general economic policy within the limits of the

67
Maastricht Treaty and the new Treaty on Coordination, Stability and Governance.

According to this model, EU’s role is the one of “discipline enforcer” which is in

charge of policing the implementation of commitments such as discipline rules

concerning fiscal and macroeconomic balances. The role of the EU is mainly

corrective. In order to meet the challenge of enforcing fiscal discipline, the natural

evolution of this model is to become ever stricter. As we have seen, now the 3

percent limit of government deficit is complemented by a 1 percent limit in

structural government deficit, and the “European semester”, by which the EC is in

charge of an ex-ante review of national budgets. Eventually, in a later phase, the

Union may be empowered to achieve those objectives through specific policy

reforms such as reforming the national pension systems, or even the tax system.

Evolution towards further integration could take place through more detailed

prescriptions and recommendations from the centre, and through the use of hard law

within the surveillance procedures. On the plus side, the enforcement of more rigid

fiscal and budget rules across the Euro area might ease the way towards mechanisms

of debt mutualisation, such as the Eurobonds. At a final stage, EU could routinely

compel Euro area countries to allocate public resources in a certain way. This model,

taken to its logical conclusion, would turn national administrations into simple

implementers of policies that have been made at EU level. Evidently some countries

will be reluctant to follow this path because tax and expenditure powers are

traditionally seen as two of the last strongholds of national sovereignty and

democratic decision-making.

68
b) The “classic fiscal federalism” model

On the other hand, the EMU could create an independent central fiscal authority in

what would constitute the traditional fiscal federalism scenario. In this model, both

member states and EU would have the competence to raise revenues to provide

people with public goods. This scenario would also include some kind of “transfer

union”. In general, the EU would have the necessary resources to address structural

inequalities and prevent asymmetric shocks through fiscal instruments such as

targeted spending or intergovernmental grants among others. As an economic theory,

fiscal federalism aims to find a normative framework for the assignment of functions

and fiscal instruments to different levels of government. In fact, one of its classic

tenets is that the central government should have the basic responsibility for

macroeconomic stabilization, hence the centre should be able to raise its own

revenues and impose its own taxes. The question of who must be competent to

impose taxes in a particular area is the core of a fiscally decentralized system. In

theory, since the different levels of government are tasked with the provision of

public goods, they will normally have revenue-raising power in order to be able to

provide those goods. Moreover, it is widely accepted that the provision of public

goods should comply with the subsidiarity principle. Thus, allowing EU to develop a

larger fiscal space requires identifying the public good or goods to be provided; this

may require redistributing the current system of competencies included in the

Treaties. In articulating these arrangements, it would be necessary to deal with

several questions, including how to reconcile the new fiscal system within the Euro

area with the wider membership of the Union.

69
c) Evaluation of the two models

Either the surveillance model or the classical federalist model are federalist in

essence, since it empowers the central authority in the field of macroeconomic and

fiscal policy in order to maintain financial stability and limit inequalities and the

impact of asymmetric shocks. The main difference is that in the surveillance model

the emphasis is in limiting with binding rules the fiscal (and eventually the social)

policy space of member states, whereas in the classical federalist model the centre is

given the power to tax and spend in order to promote growth and economic

convergence, hence the emphasis is on what can be done instead of what cannot be

done. In other words, the two models are suited for a particular anti-crisis economic

policy. Restrictive federalism is better suited for aiming at the achievement of

budgetary balance as the way-out of a financial and economic crisis. Classical

federalism is better suited for developing a countercyclical economic policy from the

centre, backed by EU level tax revenues and bonds. In the end the second model

may protect national autonomy more effectively by guaranteeing member states the

competence of deciding how to raise their revenues and how to allocate and spend

them, and by limiting the level of detail at which surveillance from the centre can

take place. In addition, democratic legitimacy is likely to suffer more with the

surveillance model, since it gives a lot of power to the European Commission, a

body whose only popularly elected member is the President; furthermore, he/she

lacks the power to appoint the commissioners (each member state has the power to

pick one). This model, if it were to evolve in the direction of further creation of

binding rules in the field of national taxing and spending, will require, aside from

70
likely Treaty changes, the participation of the European Parliament in order to

provide full democratic power. In addition, every subsequent step towards a deeper

federation must be accompanied by a clear commitment of social justice and the

convergence of social standards, including the establishment of an EU system of

minimum wages. In principle, social federalism is compatible with both the

surveillance and the classical federalist models, since the European Parliament can

endorse a legislation mandating each member state to establish a minimum wage,

and/or alternatively, establish an EU-wide minimum wage. In the long term, the

most likely scenario is a mix of restrictive and classical fiscal federalism. The

balance in favour of the first or the second will be achieved if the economic

stagnation continues and progressive political forces are able to channel popular

demands in favour of effective pro-growth economic policies. What is clear is that if

we fail to have a proper fiscal federalism, openly agreed and democratically backed,

we will have the surveillance model in an undercover fashion and enforced by

unelected Commission officials. Countries should think carefully about which path

is more approachable for them.

Is Federal Europe necessary/desirable? Are there other


alternatives?

So far I have tried to clarify the issue of federalism. There are key elements of

federalism missing in the present-day European Union, among them the persistence

of national veto and the lack of a true common foreign and security policy. This is

why we European federalists continue to advocate for a Federal Europe, with full

democratic legitimacy and able to act efficiently. After all, a European federation has

71
always been the final aim of the European construction, ever since the Schuman

Declaration. However, is federalism the only perspective available to unite Europe?

The obvious alternative to federalism is inter-governmentalism, by which the

European Council decides which areas are to be further integrated and how. This

method has been intensely employed during the financial and economic crisis and

has produced two new Treaties (the one establishing the European Financial Stability

Facility and the Treaty on Governance, Stability and Coordination), the Banking

Union and so on. The intergovernmental method basically places all the decision

power in the hands of the 28 heads of state and government who sit at the European

Council twice a year in formal meetings that last until the early hours of the

following morning. This EU institution works by consensus. Its democratic

legitimacy is indirect and it is not a legislative body. In contrast, we already have the

Council of the EU which works ordinarily by Qualified Majority Voting, is in charge

of co-legislating with the European Parliament and is already representing the

national interests. Now, it is clear that by intergovernmental agreements federal

institutions and norms can be created. However, it is important to bear in mind that

the democratic legitimacy of the decisions taken is lower, while reaching consensus

is harder to achieve. Looking outside Europe, a federation is the only way we have

to overcome challenges that states alone would never be able to overcome in this

global world. Taking into account the new emerging economies with hundreds of

millions of inhabitants, such as India, China, Brazil or Indonesia, Europe can only be

a relevant international actor if it is united, with a single voice, establishing the EU

as a key actor of this complex international society.

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Why Europe is not (yet) a federation

Now that we know how the European Union is structured, we can assess in which

aspects it coincides with and differs from a federation. The European Union shares

most features of what the literature defines as a federation. First of all, the EU has at

least two levels of government, namely EU-level and member-state level, each

existing under its own right. The European Treaties allocate jurisdiction and

resources to these two main orders of government. In areas where the jurisdiction of

the EU and the Member States overlap, there are provisions for shared government.

Secondly, community law is superior to national law. The European Court of Justice

solves conflicts between the European institutions and the Member States. In

addition, European legislation is increasingly made by majority decision. At the

same time, the composition and procedures of the European institutions are based

not only on principles of majoritarian representation, but guarantee the

representation of minority views. Finally, the EU has a directly elected parliament.

Once every five years the European Parliament is directly chosen by the European

voters7. However, there are important features of a federation which the European

Union lacks.

First of all the European Union is not a federal state because its member states are

independent sovereign nations. However, the member states have given up some of

their sovereignty in order to gain greater collective strength and influence than they

could have when acting individually. In practice, this means that the member states

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give up some of their decision-making powers to the European institutions. You

could argue that the European Union fits the middle between the fully federal system

(such as the United States) and the intergovernmental cooperation system (such as

the United Nations). In addition, the European Parliament has no supervision over

the Council. Furthermore it may dismiss the Commission only as a body, which is a

measure far too drastic to use daily. In addition, the Parliament has no right to

initiate legislation8.

When we look at the differences between the European Union and the United States

of America, an example of federalism, we see other reasons why the EU is not (yet)

a federation. The EU is governed by treaties between the member states, whereas the

United States is founded on a constitution. The European Union is built on agreeing

concrete policies, particularly economically for a single market. Member states of

the EU have retained national control of foreign and defence policy, whereas the

United States has a joint military force.

Also taxation is a missing portfolio. The EU does not tax its citizens directly, but

rather gets its main income from the contribution of its member state. In addition,

nations have individual membership of intergovernmental bodies, such as the United

Nations. If the EU were a true federation with a coherent central government, Henry

Kissinger would not need to have asked, ‘When I want to speak to Europe, who do I

telephone?’9.

8
9

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For all these reasons, the European Union is at present no federal state. There is a lot

of debate about the prospects in what direction the European Union will develop

itself. Will the European Union continue to exist and integrate even more into the

direction of a “United States of Europe” or will the economic crisis and the populist

national parties, among other things, contribute to the independence of the member

states and the fall of the European Union? There exist different opinions about the

desirability of these two different directions. And Brexit and the election of Macaron

in France seem to point that it could still go either way.

The proponents of a federal Europe

Already in 1946 Winston Churchill advocated for a ‘United States of Europe’ in his

famous speech at the University of Zurich in 1946. He was convinced that only a

united Europe could overcome the two World Wars and guarantee peace. His goal

was to remove the downside of European nationalism. Churchill was one of the first

to plea for European integration to prevent a world war from ever happening again.

As a first step, he called for the creation of a Council of Europe, which was founded

on 5 May 1949. Winston Churchill became a driving force behind European

integration and an active fighter for its cause10.

European Commission President José Manuel Barroso argued in favour of the

European Union to further integrate and become a federation. He said that the

member states need to federate if the EU wants to survive the coming decades. He

called for the EU to be turned into a "federation of nation states" 11. Barroso sees it

10
11

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necessary for the EU to further integrate and act as one in an age of globalization.

Economically the EU will be better able to compete with large trading partners such

as the United States and China.

European Parliament President Martin Schulz agrees with Barosso. Schulz is of the

opinion that no EU member state is able to take on challenges such as climate

change, immigration and economic crisis on its own. Therefore, the European

integration must continue to search for solutions together. “Someday we will have

the ‘United States of Europe’,” Schulz said. However, there has to remain diversity

of European identities and it should not lead to disappearance of national identities.

In June 2012, ten EU foreign ministers participated in a study group for the future of

Europe. Their aim was to exert pressure to the process of the European Union to

become a federation. They proposed to reduce the power of national government

leaders and give greater authority to the European Commission, especially the

European Commission president. In addition, they recommended to replace

European councils of ministers and heads of state with a chamber “of states” in the

European parliament. National topics, most importantly the management of borders,

defence and public spending, will be transferred to the federation12.

Another proponent of further European integration is the European Federalist Party.

This European political party strives for a more democratic, efficient and cohesive

Europe. They believe that only a European approach, as opposed to a national

approach, can provide solutions to increasingly global challenges. In their manifest

12

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they describe that their goal is to unite European movements and citizens to strive or

a new European social contract within a true, transparent and fair European

Federation. The party aims to do this by, for example, establishing English as the

main language of the European Federation and a President elected directly by the

European citizens. Just as President Schulz, the party treats the different national

cultures with caution: “European culture consists of a rich multitude of local

expressions that must be preserved and promoted as a unique treasure and as the

common ground of our identity”13.

In the Standard Eurobarometer survey, carried out in 2012, the public opinion in the

EU (27 member states and the six candidate countries) is measured. It becomes

apparent thatthe public opinion of European citizens is mainly positive about further

European integration. Almost three-quarters of respondents (73%) say they are in

favour of a common security and defence policy among EU member States. Also,

64% support a common foreign policy of the 27 member states of the EU.

Traditionally, opinions in the Nordic countries and the United Kingdom are the most

hostile to a common foreign policy. Most importantly, more than 40% of European

citizens are in favour of developing the European Union into a federation of nation-

states, while 35% are opposed to the idea. The other 20% expresses no opinion,

which is relatively high on this question. This high rate of no opinion suggests that

this debate is still poorly understood by a large proportion of the population in some

countries 14.

13
14

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The opponents of a federal Europe

However, not everyone agrees with these positive views of a federal Europe. An

indication of opposition regarding the further integration of Europe is the failing of a

European constitution. Around 2005, an effort to draw up a constitution for the EU

was ultimately defeated after voters in several traditionally pro-European states,

especially France and the Netherlands, rejected it in referendums. Because France

and the Netherlands were founder members of the European Economic Community

and France in particular is one of the key players, the no-vote signals a disconnection

between the voters of Europe and the EU institutions15.

Another drawback of a federation is the change of treaties it requires. Changing the

EU treaty has happened in the past, but it is a complex and lengthy process that often

raises tensions among member states. For example, the formulation of the Lisbon

Treaty begun in 2002, but only came into force on December 1, 2009. The call from

Britain’s Prime Minister David Cameron for an in-out EU referendum signals the

opposite of further European integration. Bernard Jenkin, the veteran Eurosceptic,

said: “The speech sets out some very important principles about the importance of

national parliaments, the importance of legitimacy and the repudiation of ever closer

union is very significant "16. Cameron’s speech did not plea for a European

federation, but rather for more national autonomy. Britain is not the only country

where anti-EU passions are stirring. The increasing role Euroscepticism plays in

West European political parties represents dissatisfaction with the EU 17.

15
16
17

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Euroscepticism is found across political parties across the left and right spectrum and

they focus attention on the perceived disadvantages of Union membership.

Frequently used arguments by Eurosceptics are the weakening of the nation state

because of European integration, the view that the European Union is undemocratic

and the opinion that joining all together in one union will not lead to economic

growth and stability for every member state.

The British reservations against a federal Europe have a long history. The political

argument holds that keeping the continental powers divided traditionally enabled

Britain to develop a unique political system and to extend it to a global empire. The

historical argument is that the continentals’ motivation for forming the EU varied

substantially from the way Britain perceived herself. The motivation to forget the

Second World War and its consequences was to forget the British role as the saviour

of Europe. Finally, the economic argument holds that Britain’s membership

jeopardized its established and important trade links with the Commonwealth of

Nations18. In his paper, Dennis C. Mueller mentions a problem of a federal state that

can arise and must be taken into consideration. Many nations think that some public

goods should be available for every citizen. The inequality between different

member states may lead to transferring funds from members of rich nations to the

poorer nations in order to increase the capacity of the poorer ones to finance these

minimum levels of public services19. Linked to this idea is the view that differences

between the member states can lead to problems in implementing policies. Because

of the current economic crisis it becomes apparent that it is difficult to implement

18
19

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one economic policy for every member state, because not all member states are the

same. Actually, every nation wants and needs a different policy, but because of the

single currency and central bank this is not possible anymore. Therefore, the

European central bank has the difficult task of implementing a policy that fits the

middle of all the different needs.

Europe’s Fateful Choice

In the vision of the great thinker and teacher of federalism, the late Dan Elazar,

Europe is already a federalism. The federal principle, he rightly explained, should

not be confused with its specific manifestation in the federal state. 20 Echoing the

same thought, Pescatore, the Marshall of European Law, observes [T]he methods of

federalism are not only a means of organizing states. [F]ederalism is a political and

legal philosophy which adapts itself to all political contexts on both the municipal

and the international level, wherever and whenever two basic prerequisites are

fulfilled: the search for unity, combined with genuine respect for the autonomy and

the legitimate interests of the participant entities.21

It is, thus, not surprising that comparisons between the distinct federalisms in North

America and Europe have constituted a staple feature in the ongoing discussion

20 D. Elazar, Options, Problems and Possibilities in Light of the Current Situation, in idem (ed.), Self
Rule - Shared Rule (1979), 1-13, at 3 and 4. Ramat Gan, Turtledove Publishing.

21 Pierre Pescatore, Preface, Courts and Free Markets, in T. Sandalow & E. Stein, Courts and Free
Markets (1982). Oxford, Clarendon Press, Vol.1, at ix-x.

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concerning European integration.22 Institutional arrangements have attracted a great

deal of attention because of the apparent divergence of the European experience

from the typical federation. In contrast with the classical model of the federal state,

and despite considerable refinements, Europe’s institutional structure still adheres to

the original supranational design of Commission-Council-Parliament and continues

to guarantee a decisive voice in European governance to the governments of the

Member States. The formal empowerment of, say, the European Parliament over the

years has been counterbalanced by informal empowerment of the Medusa-like

Council. For its part, the Commission has had to struggle to preserve its own weight

in the decisional process. Though superficially—and to some, optimistically—one

could compare the Commission to a federal Executive Branch, the Council to a

Senate-type State chamber and the Parliament to a popular chamber, the realities of

an intergovernmental Europe are still forcefully in place. To use somewhat archaic

language of statecraft, institutionally Europe is closer to the confederal than it is to

the federal.

Constitutional arrangements, by contrast, have attracted considerable comparative

attention because of their apparent convergence with the experience of the federal

state. Typically federations allocate certain powers to federal institutions, and

22 See, for example, Robert R. Bowie & Carl J. Friedrich (eds.) Studies in Federalism, (Boston Little
Brown & Co. 1954) and Arthur Whittier Macmahon (ed.), Federalism Mature and Emergent,
(Columbia University Press, 1955) for early comparative analysis in the formative years. For
subsequent analyses of the more mature system see, for example, Terrance Sandalow & Eric Stein
(eds.) Courts and Free Markets (Clarendon Press-Oxford, 1982), 2 volumes, Mauro Cappelletti,
Monica Seccombe & Joseph H. H. Weiler (eds.) Integration Through Law – Europe and the American
Federal Experience (Walter de Gruyter, 1986 Berlin and New York et seq.), Koen Lenaerts (ed.), Two
Hundred Years of U.S. Constitution and Thirty Years of EEC Treaty (Brussels, Kluwer, 1988).

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typically policies and laws emanating from the exercise of such power are the

supreme law of the land, meaning they are the law of the land in the sense of

operating without the intermediary of local government and in case of conflict they

trump conflicting norms. Federal state constitutions create, always, a vertical

hierarchy of a triple nature: a hierarchy of norms which, in turn, is rooted in a

vertical hierarchy of normative authority which, in turn, is situated in a hierarchy of

real power. Despite many original intentions, federations end up with a concentration

of both constitutional and institutional power at the federal level.

As a result of a combination of express Treaty provisions—such as those stipulating

that certain types of Community legislation would be directly applicable 23—of

foundational principles of international law—such as the general principle of

supremacy of treaties over conflicting domestic law, even domestic constitutional

law24—and of the interpretations of the European Court of Justice, 25 a set of

constitutional norms regulating the relationship between the Union and its Member

23 Originally Article 189 EEC (Treaty of Rome)

24 The general rule of international law does not allow, except in the narrowest of circumstances, for
a state to use its own domestic law, including its own domestic constitutional law, as an excuse for
non-performance of a treaty. That is part of the a, b, c of international law and is reflected in the same
Vienna Convention Article 27. Oppenheim’s International Law is clear: “It is firmly established that
a state when charged with a breach of its international obligations cannot in international law validly
plead as a defense that it was unable to fulfill them because its internal law . . . contained rules in
conflict with international law; this applies equally to a state’s assertion of its inability to secure the
necessary changes in its law by virtue of some legal or constitutional requirement . . . “ Oppenheim’s
International Law, Vol. I: Peace 84-85. Sir Robert Jennings & Sir Arthur Watts eds., 9th ed. (1992
Harlow, Essex).

25 See generally Weiler, The Transformation of Europe in The Constitution of Europe (1999)
Cambridge University Press, Cambridge, New York.

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States, or the Member States and their Union, has emerged which is very much like

similar sets of norms in most federal states. There is an allocation of powers, which

as has been the experience in most federal states has often not been respected; there

is the principle of the law of the land, in the EU called Direct Effect; and there is the

grand principle of supremacy every bit as egregious as that which is found in the

American federal constitution itself.

Put differently, the constitutional discipline which Europe demands of its

constitutional actors—the Union itself, the Member States and State organs,

European citizens, and others—is in most respects indistinguishable from that which

you would find in advanced federal states.

But there remains one huge difference: Europe’s constitutional principles, even if

materially similar, are rooted in a framework which is altogether different. In

federations, whether American or Australian, German or Canadian, the institutions of

a federal state are situated in a constitutional framework which presupposes the

existence of a ‘constitutional demos’, a single pouvoir constituant made of the

citizens of the federation in whose sovereignty, as a constituent power, and by whose

supreme authority the specific constitutional arrangement is rooted. Thus, although

the federal constitution seeks to guarantee State rights and although both

constitutional doctrine and historical reality will instruct us that the federation may

have been a creature of the constituent units and their respective peoples, the formal

sovereignty and authority of the people coming together as a constituent power is

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greater than any other expression of sovereignty within the polity and hence the

supreme authority of the Constitution—including its federal principles.

Of course, one of the great fallacies in the art of ‘federation building’, as in nation

building, is to confuse the juridical presupposition of a constitutional demos with

political and social reality. In many instances, constitutional doctrine presupposes the

existence of that which it creates: the demos which is called upon to accept the

constitution is constituted, legally, by that very constitution, and often that act of

acceptance is among the first steps towards a thicker social and political notion of

constitutional demos. Thus, the empirical legitimacy of the constitution may lag

behind its formal authority—and it may take generations and civil wars to be fully

internalized—as the history of the US testifies. Likewise, the juridical presupposition

of one demos may be contradicted by a persistent social reality of multiple ethnoi or

demoi who do not share, or grow to share, the sense of mutual belongingness

transcending political differences and factions and constituting a political

community essential to a constitutional compact of the classical mould. The result

will be an unstable compact, as the history of Canada and modern Spain will testify.

But, as a matter of empirical observation, I am unaware of any federal state, old or

new, which does not presuppose the supreme authority and sovereignty of its federal

demos.

In Europe, that presupposition does not exist. Simply put, Europe’s constitutional

architecture has never been validated by a process of constitutional adoption by a

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European constitutional demos and, hence, as a matter of both normative political

principles and empirical social observation the European constitutional discipline

does not enjoy the same kind of authority as may be found in federal states where

their federalism is rooted in a classic constitutional order. It is a constitution without

some of the classic conditions of constitutionalism. There is a hierarchy of norms:

Community norms trump conflicting Member State norms. But this hierarchy is not

rooted in a hierarchy of normative authority or in a hierarchy of real power. Indeed,

European federalism is constructed with a top-to-bottom hierarchy of norms, but

with a bottom-to-top hierarchy of authority and real power.

You would think that this would result in perennial instability. As we shall see, one

of the virtues of the European construct is that it produces not only a surprisingly

salutary normative effect but also a surprisingly stable political polity. Member

States of the European Union accept their constitutional discipline with far more

equanimity than, say, Quebec. There are, surely, many reasons for this, but one of

them is the peculiar constitutional arrangement of Europe.

This distinct constitutional arrangement is not accidental. Originally, in a fateful and

altogether welcome decision, Europe rejected the federal State model. In the most

fundamental statement of its political aspiration, indeed of its very telos, articulated

in the first line of the Preamble of the Treaty of Rome, the gathering nations of

Europe ‘Determined to the lay the foundations for an ever closer Union of the

peoples of Europe’. Thus, even in the eventual promised land of European

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integration, the distinct peoplehood of its components was to remain intact—in

contrast with the theory of most, and the praxis of all, federal states which predicate

the existence of one people. Likewise, with all the vicissitudes from Rome to

Amsterdam, the Treaties have not departed from their original blueprint as found, for

example, in Article 2 EC of the Treaty in force, of aspiring to achieve ‘ . . . economic

and social cohesion and solidarity among Member States’ (emphasis added). Not one

people, then, nor one State, federal or otherwise.

Europe was re-launched twice in recent times. In the mid-1980s the Single European

Act introduced, almost by stealth, the most dramatic development in the institutional

evolution of the Community achieved by a Treaty amendment: majority voting in

most domains of the Single Market. Maastricht, in the 1990s, introduced the most

important material development, EMU. Architecturally, the combination of a

‘confederal’ institutional arrangement and a ‘federal’ legal arrangement seemed for a

time to mark Europe’s Sonderweg – its special way and identity. It appeared to

enable Europe to square a particularly vicious circle: achieving a veritably high level

of material integration comparable only to that found in fully fledged federations,

while maintaining at the same time—and in contrast with the experience of all such

federations—powerful, some would argue strengthened,26 Member States.

26 See three classics: A.S. Milward et al., The European Rescue of the Nation State (Berkeley University of California
Press 1992); Stanley Hoffmann, Reflections on the Nation-State in Western Europe Today, in Loukas Tsoukalis, The
European Community – Past, Present & Future (Oxford, Basil Blackwell, 1983); A. Moravcsik, The Choice for Europe
(Cornell University Press, Ithaca, NY, 1998).

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At the turn of the new century, fuelled, primarily, by the Enlargement project, there

is a renewed debate concerning the basic architecture of the Union. Very few dare

call the child by its name and only a few stray voices are willing to suggest a fully

fledged institutional overhaul and the reconstruction of a federal-type government

enjoying direct legitimacy from an all European electorate.27 Instead, and evidently

politically more correct, there has been a swell of political and academic voices 28

calling for a new constitutional settlement which would root the existing discipline

in a ‘veritable’ European constitution to be adopted by a classical constitutional

process and resulting in a classical constitutional document. The Charter of Human

Rights is considered an important step in that direction. What is special about this

discourse is that it is not confined to the federalist fringe of European activists, but

has become respectable Euro-speak both in academic and political circles.

Four factors seem to drive the renewed interest in a formal constitution rather than

the existing ‘constitutional arrangement’ based on the Treaties. The first factor is

27
See e.g. the IHT Op.Ed by Giscard d’Estaing and Helmut Schmidt, International Herald Tribune,
April 11th, 2000. For a more honest discussion, admitting the statal implications of the new construct,
see for example G. Federico Mancini, Europe: The Case for Statehood, 4 European Law Journal
(1998), 29-42, and Harvard Jean Monnet Working Paper 6/98, and see, of course, Jürgen Habermas’s
suggestions in The European Nation-State and the Pressures of Globalization, New Left Review no.
235 (May 1999), 46-59, and Die Einbeziehung des Anderen, Chapter III “Hat der Nationalstaat eine
Zukunft?”, 128-191, Suhrkamp, Frankfurt, 1996. There is an interesting political-legal paradox here.
A ‘flexible’ Europe with a ‘core’ at its center will actually enable that core to retain the present
governance system dominated by the Council—the executive branch of the Member States—at the
expense of national parliamentary democracy. Constitutionally, the statal structure would in fact
enhance even further the democracy deficit.

28 In the political sphere see, for example, the over-discussed Berlin speeches of Joschka Fischer and
Jacque Chirac. For text and comments on these interventions, see the special symposium on the
Harvard Jean Monnet site: www.JeanMonnetProgram.org.

87
political. It is widely assumed, correctly it would seem, that the current institutional

arrangements would become dysfunctional in an enlarged Union of, say, 25. A major

overhaul seems to be called for. In the same vein, some believe, incorrectly in my

view, that the current constitutional arrangements would not work. In particular, the

absence of a formal constitution leaves all important constitutional precepts of the

Union at the mercy of this or that Member State threatening both the principle of

uniformity of, and of equality before, the law as well as an orderly functionality of

the polity. One is forever worried: ‘What will the German/Italian/Spanish, or

whatever, constitutional court say about this or that.’ A formal constitution enjoying

the legitimacy of an all-European pouvoir constituant would, once and for all, settle

that issue.

The second factor is ‘procedural’ or ‘processual’. The process of adopting a

constitution—the debate it would generate, the alliances it would form, the

opposition it would create—would all, it is said, be healthy for the democratic and

civic ethos and praxis of the polity.

The third factor is material. In one of its most celebrated cases in the early 1960s, the

European Court of Justice described the Community as a ‘. . . new legal order for the

benefit of which the States have limited their sovereign rights, albeit in limited

fields’. There is a widespread anxiety that these fields are limited no more. Indeed,

not long ago a prominent European scholar and judge wrote that there ‘. . . simply is

no nucleus of sovereignty that the Member States can invoke, as such, against the

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Community’.29 A constitution is thought an appropriate means to place limits to the

growth of Community competences.

Of greatest interest to me is the final normative and conceptual drive behind the

discussion. Normatively, the disturbing absence of formal constitutional

legitimization for a polity that makes heavy constitutional demands on its constituent

Members is, it may be thought, problematic. If, as is the case, current European

constitutional discipline demands constitutional obedience by and within all Member

States, their organs and their peoples even when these conflict with constitutional

norms of the Member State, this, it is argued, should be legitimized by a constitution

which has the explicit consent of its subjects instead of the current pastiche which,

likeTopsy, just ‘growed’.

Conceptually, the disquiet with the current European constitutional arrangement

must be understood against a European constitutional discourse, which for years has

been dominated by a strange combination of Kelsen 30 and Schmitt.31 It is Kelsenian

in its attempts, under many guises to describe, define and understand the European

Grundnorm—the source whence the authority of European constitutional disciplines

29 Koen Lenaerts, Constitutionalism and the many faces of Federalism 38 A. J.Com. L 205 (1990) at
220. The Court, too, has modified its rhetoric: in its more recent Opinion 1/91 it refers to the Member
States as having limited their sovereign rights ‘ . . . in ever wider fields.’ Opinion 1/91, [1991] ECR
6079, Recital 21.

30 Hans Kelsen, On the Pure Theory of Law 1 Israel Law Review 3 (1966).

31 See C. Schmitt, The concept of the Political (The University of Chicago Press, 1996) at, for
example, 35, 43 et seq.

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derives. The search for this Kelsenian holy grail, whether or not acknowledged

explicitly, underscores the great bulk of the academic literature theorizing European

constitutionalism. And this holy grail is, typically, understood in Schmittian terms:

the search is for the ultimate source of authority, the one that counts in the case of

extremity, of conflict.32 That is the true criteria of the real Grundnorm.

Early ‘Europeanists’ liked to argue that the Grundnorm, typically expressed in, say,

the principle of supremacy of European law over national law in case of conflict, had

shifted to the ‘central’ or ‘general’ power: that is, to Europe. That view is less in

fashion today and is contested by those who point out that, both in fact and in law,

ultimate authority still rests in national constitutional orders which sanction

supremacy, define its parameters, and typically place limitations on it.

According to this latter view, the statal Grundnorm would shift. Only if one were to

take the existing constitutional precepts and enshrine them in a formal constitution

adopted by a European ‘constitutional demos’—the peoples of Europe acting on that

occasion as one people—would constitutional authority in fact and in law shift to

Europe. For the most part, both for friends and foes of European constitutionalism

the debate is conducted on this Kelseno-Schmittian turf.

32 Whether the Grundnorm is internal to the legal order or outside, it is a contested matter. Insightful
in this genre is Pavlos Eleftheriadis, Begging the Constitutional Question, 36 JCMS 255 (1998);
Aspects of European Constitutionalism 21 E.L.Rev. 32 (1996).

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I am far from certain whether the constitutional discussion will actually result in the

adoption of a formal constitution and I am even more doubtful whether we will see

in the near future a European state even of a most limited core. My interest in this

debate is, thus, that of neither the international relations expert nor the social

scientist trying to explain or predict the course that European integration has taken or

will take. I am, instead, mostly interested in the normative values of which the

constitutional and political discourse is an expression.

I want to explain why the unique brand of European constitutional federalism—the

status quo—represents not only its most original political asset but also its deepest

set of values. I also do not think that a formal constitution is a useful response to

other concerns such as the issue of competences.

Authority, Submission and Emancipation: A Parable

Before offering a normative reading of the European constitutional architecture, I

want to tweak some of the premises on which the constitutional debate is typically

premised. The following parable is offered with this purpose in mind.

There is an inevitable and scary moment in the growing up of an observant Jew and

in the raising of religiously observant children. In a religion the constitutive and

defining feature of which is Nomos—the Law—and which has no theology, there is

no easy answer to the inevitable question: why observe this law? The Pauline

antinomian revolution derives from a failure to find a convincing justification for

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submission to Nomos. To the skeptical reader one may point out that a similar

question may be asked regarding submission and loyalty to a constitution.

The simplest, and deepest, answer is rooted in covenant and in the authority—and

the Author—whence Nomos derives. But submission and obedience to God surely

do not exhaust the significance of a Nomos-based life. One intriguing reply, given by

the polymath philosopher Isaiah Leibowitz,33 is relevant to our current discussions of

European constitutionalism.

Take the core set of ritualistic observances: kosher laws, Sabbath laws, and the laws

of purity in sexual relations. They are the core set because they affect the three

central features of our mundane existence: eating, working, loving. Living by Nomos

means a submission to a set of constraints in all these areas. The constraints are

designed in such a way that they cannot be explained in rational utilitarian terms.

Kosher rules actually exclude some of the healthiest foods; the Sabbath rules have a

niggardly quality to them that militates, in some respects, against a vision of rest and

spirituality; and the ritualistic laws of purity, involving the messy subject of

menstruation and sexual abstention, have arbitrary elements galore. It is, indeed, as if

they were designed to force the observer into pure and mindless obedience and

submission. One observes for no other reason than having been commanded. No

wonder Paul34 shrug off this yoke.

33 Y.Leibowitz, Judaism, Human Values and the Jewish State (Cambridge, MA, Harvard University
Press, 1992) passim.

34 St Paul needs no citation. But for a somewhat troubling latter-day reincarnation of this aspect of Pauline dogma, cf.
R. M. Unger, What Should Legal Analysis Become? (London, New York, Verso, 1996) at 186 et seq.

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There is, however, an interesting paradox in this submission which orthodox Judaism

as well as several strands of Islam share. Total obedience and submission are to a

transcendent authority which is not of this world. In that very act of submission is

encapsulated an emancipation and liberation from any authority of this world. By

enslaving oneself to an authority outside of this world, one declares an independence

of, and refusal to submit—in the ultimate sense—to, any authority of this world. By

abstaining from eating everything that one fancies, one liberates oneself from that

powerful part of our physical existence. By arranging life so as not to work on the

Sabbath, one subjugates the even more powerful call of career and the workplace.

And by refraining from sexual abandon, even if loving, even if within wedlock, one

asserts a measure of independence even over that exquisite part of our lives too.

Isaiah Berlin, a town mate, friend, and admirer of Isaiah Leibowitz gives the secular

equivalent to this insight in his discussion of rational liberty.

There are three relevant lessons to the constitutional and European discourse from

this parable.

1. The first: an act of submission can often be simultaneously an act of

emancipation and liberation.

2. The second: as Aristotle teaches us, virtue is a habit of the soul and habits are

instilled by practice.

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3. The third: the purpose of obeying the law is not co-terminous with the

consequences of obeying the law. One may obey to submit to the author of the

Command. A consequence, not a purpose, may be emancipation.

Let us see now how these play out in the normative understanding of European

constitutionalism.

Neither Kelsen nor Schmitt: The Principle of European


Constitutional Tolerance – Concept and Praxis

The reason the question of ultimate authority and constitutional Grundnorm seems

so important is that we consider the integrity of our national constitutional orders not

simply as a matter of legal obedience and political power but of moral commitment

and identity. Our national constitutions are perceived by us as doing more than

simply structuring the respective powers of government and the relationships

between public authority and individuals or between the state and other agents. Our

constitutions are said to encapsulate fundamental values of the polity and this, in

turn, is said to be a reflection of our collective identity as a people, as a nation, as a

state, as a Community, as a Union. When we are proud and attached to our

constitutions we are so for these very reasons. They are about restricting power, not

enlarging it; they protect fundamental rights of the individual; and they define a

collective identity which does not make us feel queasy the way some forms of ethnic

identity might. Thus, in the endless and tiresome debates about the European Union

constitutional order, national courts have become in the last decade far more

aggressive in their constitutional self-understanding. The case law is well known.

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National courts are no longer at the vanguard of the ‘new European legal order’,

bringing the rule of law to transnational relations, and empowering, through EC law,

individuals vis-à-vis Member State authority. Instead they stand at the gate and

defend national constitutions against illicit encroachment from Brussels. They have

received a sympathetic hearing, since they are perceived as protecting fundamental

human rights as well as protecting national identity. To protect national sovereignty

is passé; to protect national identity by insisting on constitutional specificity is à la

mode.

Thus, on this new reading, to submit to the constitutional disciplines of Europe

without a proper Kelsenian constitution, which formally vests in Europe Schmittian

ultimate authority, is something that not only contradicts an orderly understanding of

legal hierarchy but also compromises deep values enshrined in the national

constitution as well as a collective identity which is tied up with these values.

Indeed, it is to challenge the idea of constitution itself.

Miguel Maduro, one of the most brilliant of the new generation of European

constitutional thinkers, gives eloquent expression to this concern:

European integration not only challenges national constitutions . . . it challenges

constitutional law itself. It assumes a constitution without a traditional political

community defined and proposed by that constitution . . . European integration also

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challenges the legal monopoly of States and the hierarchical organisation of the law

(in which constitutional law is still conceived of as the ‘higher law’).35

Is this challenge so threatening?

In part it is. Modern liberal constitutions are, indeed, about limiting the power of

government vis-à-vis the individual; they do, too, articulate fundamental human

rights in the best neo-Kantian tradition; and they reflect a notion of collective

identity as a community of values which is far less threatening than more organic

definitions of collective identity. They are a reflection of our better part.

But, like the moon, like much which is good in life, there is here a dark side too.

It is, first, worth listening carefully to the rhetoric of the constitutional discourse.

Even when voiced by the greatest humanists, the military overtones are present. We

have been invited to develop a patriotism around our modern, liberal, constitutions.

The constitutional patriot is invited to defend the constitution. In some states we

have agencies designed to protect the constitution whose very name is similar to our

border defences. In other countries, we are invited to swear allegiance to the

constitution. In a constitutional democracy we have a doctrine of a fighting

35 M. Maduro, We, The Court… (Oxford, Hart Publishing, 1998) at 175. Maduro himself does not
advocate a European constitution. I cite him simply for his striking diagnosis of the issue. It is
superior to my own clumsy attempt to formulate the dilemma as a ‘Constitution without
Constitutionalism’, as ‘doing before hearkening’. J. Weiler, ‘We Will Do, and Hearken’ -- Reflections
on a Common Constitutional Law for the European Union in Roland Bieber & Pierre Widmer (eds.)
The European Constitutional Area (1995, Zurich, Schulthess).

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democracy, whereby democratic hospitality is not extended to those who would

destroy constitutional democracy itself. To be a good constitutional liberal, it would

seem from this idiom, is to be a constitutional nationalist and, it turns out, the

constitutional stakes are not only about values and limitations of power but also

about its opposite: the power which lurks underneath such values.

Very few constitutionalists and practically no modern constitutional court will make

an overt appeal to natural law. Thus, unlike the ‘constitution’ in the parable, the

formal normative authority of the constitutions around which our patriotism must

form and which we must defend is, from a legal point of view, mostly positivist. This

means that it is as deep or shallow as the last constitutional amendment: in some

countries, like Switzerland or Germany, not a particularly onerous political process.

Consequently, vesting so much in the constitutional integrity of the Member State is

an astonishing feat of self-celebration and self-aggrandizement, of bestowing on

ourselves, in our capacity of constituent power, a breathtaking normative authority.

Just think of the near sacred nature we give today to the constitutions adopted by the

morally corrupted societies of the World War II generation in, say, Italy and

Germany and elsewhere.

A similar doubt should dampen somewhat any enthusiasm towards the new

constitutional posture of national courts, which hold themselves out as defending the

core constitutional values of their polity, indeed its very identity. The limitation of

power imposed on the political branches of government is, as has been widely

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noticed, accompanied by a huge dose of judicial self-empowerment and no small

measure of sanctimonious moralizing. Human rights often provoke the most strident

rhetoric. Yet constitutional texts in our different polities, especially when it comes to

human rights, are remarkably similar. Defending the constitutional identity of the

state and its core values turns out in many cases to a defence of some hermeneutic

foible adopted by five judges voting against four. The banana saga, which has taxed

the European Court of Justice, the German Constitutional Court, the Appellate Body

of the World Trade Organization, and endless lawyers and academics is the perfect

symbol of this farce.

Finally, there is also in an exquisite irony in a constitutional ethos which, while

appropriately suspicious of older notions of organic and ethnic identity, at the very

same time implicitly celebrates a supposed unique moral identity, wisdom, and, yes,

superiority, of the authors of the constitution, the people, the constitutional demos,

when it wears the hat of constituent power and, naturally, of those who interpret it.

It was Samuel Johnson, who suggested that patriotism was the last refuge of a

scoundrel. Dr. Johnson was, of course, only partly right. Patriotism can also be

noble. But it is an aphorism worth remembering when we celebrate constitutional

patriotism, national or transnational, and rush to its defence from any challenges to

it. How, then, do we both respect and uphold all that is good in our constitutional

tradition and yet, at the same time, keep it and ourselves under skeptical check?

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The advocacy for a European constitution is not what it purports to be. It is not a call

for ‘a’ constitution. It is a call for a different form of European constitution from the

constitutional architecture we already have. And yet the current constitutional

architecture, which of course can be improved in many of its specifics, encapsulates

one of Europe’s most important constitutional innovations, the Principle of

Constitutional Tolerance.

The Principle of Constitutional Tolerance, which is the normative hallmark of

European federalism, must be examined both as a concept and as a praxis. First,

then, the concept. European integration has been, historically, one of the principal

means with which to consolidate democracy within and among several of the

Member States, both old and new, with less than perfect historical democratic

credentials. For many, thus, democracy is the objective, the end, of the European

construct. This is fallacious. Democracy is not the end. Democracy, too, is a means,

even if an indispensable means. The end is to try, and try again, to live a life of

decency, to honour our creation in the image of God, or the secular equivalent. A

democracy, when all is said and done, is as good or bad as the people who belong to

it. The problem of Haider’s Austria is not an absence of democracy. The problem is

that Austria is a democracy, that Haider was elected democratically, and that even the

people who did not vote for him are content to see him and his party share in

government. A democracy of vile persons will be vile.

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Europe was built on the ashes of World War II, which witnessed the most horrific

alienation of those thought of as aliens, an alienation which became annihilation.

What we should be thinking about is not simply the prevention of another such

carnage: that’s the easy part and it is unlikely ever to happen again in Western

Europe, though events in the Balkans remind us that those demons are still within

the continent. More difficult is dealing at a deeper level with the source of these

attitudes. In the realm of the social, in the public square, the relationship to the alien

is at the core of such decency. It is difficult to imagine something normatively more

important to the human condition and to our multicultural societies.

There are, it seems to me, two basic human strategies of dealing with the alien and

these two strategies have played a decisive role in Western civilisation. One strategy

is to remove the boundaries. It is the spirit of ‘come, be one of us’. It is noble since

it involves, of course, elimination of prejudice, of the notion that there are

boundaries that cannot be eradicated. But the ‘be one of us’, however well

intentioned, is often an invitation to the alien to be one of us, by being us. Vis-à-vis

the alien, it risks robbing him of his identity. Vis-à-vis oneself, it may be a subtle

manifestation of both arrogance and belief in my superiority as well as intolerance. If

I cannot tolerate the alien, one way of resolving the dilemma is to make him like me,

no longer an alien. This is, of course, infinitely better than the opposite: exclusion,

repression, and worse. But it is still a form of dangerous internal and external

intolerance.

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The alternative strategy of dealing with the alien is to acknowledge the validity of

certain forms of non-ethnic bounded identity but simultaneously to reach across

boundaries. We acknowledge and respect difference, and what is special and unique

about ourselves as individuals and groups; and yet we reach across differences in

recognition of our essential humanity. What is significant in this are the two

elements I have mentioned. On the one hand, the identity of the alien, as such, is

maintained. One is not invited to go out and, say, ‘save him’ by inviting him to be

one of you. One is not invited to recast the boundary. On the other hand, despite the

boundaries which are maintained, and constitute the I and the Alien, one is

commanded to reach over the boundary and accept him, in his alienship, as oneself.

The alien is accorded human dignity. The soul of the I is tended to not by eliminating

the temptation to oppress but by learning humility and overcoming it.

The European current constitutional architecture represents this alternative,

civilizing strategy of dealing with the ‘other’. Constitutional Tolerance is

encapsulated in that most basic articulation of its meta-political objective in the

preamble to the EC Treaty mentioned earlier in this chapter:

Determined to lay the foundations of an ever closer union among the peoples of

Europe.

No matter how close the Union, it is to remain a union among distinct peoples,

distinct political identities, distinct political communities. An ever closer union could

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be achieved by an amalgam of distinct peoples into one which is both the ideal

and/or the de facto experience of most federal and non-federal states. The rejection

by Europe of that One Nation ideal or destiny is, as indicated above, usually

understood as intended to preserve the rich diversity, cultural and other, of the

distinct European peoples as well as to respect their political self-determination. But

the European choice has an even deeper spiritual meaning.

An ever closer union is altogether more easy if differences among the components

are eliminated, if they come to resemble each other, if they aspire to become one.

The more identical the ‘Other’s’ identity is to my own, the easier it is for me to

identify with him and accept him. It demands less of me to accept another if he is

very much like me. It is altogether more difficult to attain an ever closer Union if the

components of that Union preserve their distinct identities, if they retain their

‘otherness’ vis-à-vis each other, if they do not become one flesh, politically

speaking. Herein resides the Principle of Tolerance. Inevitably I define my distinct

identity by a boundary which differentiates me from those who are unlike me. My

continued existence as a distinct identity depends, ontologically, on that boundary

and, psychologically and sociologically, on preserving that sentiment of otherness.

The call to bond with those very others in an ever closer union demands an

internalization—individual and societal—of a very high degree of tolerance. Living

the Kantian categorical imperative is most meaningful when it is extended to those

who are unlike me.

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In political terms, this Principle of Tolerance finds a remarkable expression in the

political organization of the Community, which defies the normal premise of

constitutionalism. Normally in a democracy, we demand democratic discipline, that

is, accepting the authority of the majority over the minority only within a polity

which understands itself as being constituted of one people, however defined. A

majority demanding obedience from a minority, which does not regard itself as

belonging to the same people, is usually regarded as subjugation. This is even more

so in relation to constitutional discipline. And yet, in the Community, we subject the

European peoples to constitutional discipline even though the European polity is

composed of distinct peoples. It is a remarkable instance of civic tolerance to accept

to be bound by precepts articulated not by ‘my people’ but by a community

composed of distinct political communities: a people, if you wish, of others. I

compromise my self-determination in this fashion as an expression of this kind of

internal—towards myself—and external—towards others—tolerance.

Constitutionally, the Principle of Tolerance finds its expression in the very

arrangement which has now come under discussion: a federal constitutional

discipline which, however, is not rooted in a statist-type constitution.

This is where the first and third lessons of the parable come into play. Constitutional

actors in the Member State accept the European constitutional discipline not because

as a matter of legal doctrine, as is the case in the federal state, they are subordinate to

a higher sovereignty and authority attaching to norms validated by the federal

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people, the constitutional demos. They accept it as an autonomous voluntary act,

endlessly renewed on each occasion, of subordination, in the discrete areas governed

by Europe to a norm which is the aggregate expression of other wills, other political

identities, other political communities. Of course, to do so creates in itself a different

type of political community one unique feature of which is that very willingness to

accept a binding discipline which is rooted in and derives from a community of

others. The Quebecois are told: in the name of the people of Canada, you are

obliged to obey. The French or the Italians or the Germans are told: in the name of

the peoples of Europe, you are invited to obey. In both, constitutional obedience is

demanded. When acceptance and subordination is voluntary, and repeatedly so, it

constitutes an act of true liberty and emancipation from collective self-arrogance and

constitutional fetishism: a high expression of Constitutional Tolerance.

The Principle of Constitutional Tolerance is not a one way concept: it applies to

constitutional actors and constitutional transactions at the Member State level, at the

Union level and among the Member States too. This dimension may be clarified by

moving from concept to praxis, to an examination of Constitutional Tolerance as a

political and social reality.

It is, in my view, most present in the sphere of public administration, in the habits

and practices it instills in the purveyors of public power in European polities, from

the most mundane to the most august. At the most mundane administrative level,

imagine immigration officials overturning practices of decades and centuries and

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learning to examine the passport of Community nationals in the same form, the same

line, with the same scrutiny of their own nationals. And a similar discipline will be

practised by customs officials, Housing Officers, educational officials, and many

more subject to the disciplines of the European constitutional order.

Likewise, a similar discipline will become routine in policy-setting forums. In

myriad areas—whether a local council or a parliament itself—every norm will be

subject to an unofficial European impact study. So many policies in the public realm

can no longer be adopted without examining their consonance with the interest of

others, the interest of Europe.

Think, too, of the judicial function, ranging from the neighbourhood giudice

conciliatore to the highest jurisdictions: willy-nilly, European law, the interest of

others, is part of the judicial normative matrix.

I have deliberately chosen examples which are both daily and commonplace but

which also overturn what until recently would have been considered important

constitutional distinctions. This process operates also at Community level. Think of

the European judge or the European public official, who must understand that, in the

peculiar constitutional compact of Europe, his decision will take effect only if

obeyed by national courts, if executed faithfully by a national public official both of

whom belong to a national administration which claims from them a particularly

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strong form of loyalty and habit. This, too, will instill a measure of caution and

tolerance.

It is at this level of praxis that the second and third lessons of the parable come into

play. What defines the European constitutional architecture is not the exception, the

extreme case which definitively will situate the Grundnorm here or there. It is the

quotidian, the daily practices, even if done unthinkingly, even if executed because

the new staff regulations require that it be done in such a new way. This praxis

habituates its myriad practitioners at all levels of public administration to their

concealed virtues.

Conclusion

One of the main ideas of the proponents of a federal Europe is that in an age of

globalization, the EU needs to be a federation in order to be able to compete with

large trading partners. In addition, no EU member state can take on large global

problems on its own. The main feeling is that further integration and more

cooperation, would strengthen Europe. More promising is that European citizens are

positive about further European integration. In contrast, the rejection of a European

constitution, the British reservations against a federal Europe and the increasingly

important role of Euroscepticism are indications that further European integration is

not happening in the near future. Another difficulty is the large difference between

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member states, which makes implementing a single policy for all nations a

problematic task.

Is a Federal Europe feasible?

By now we have clarified that the EU is not yet a Federal union, that federalism can

be of restrictive or expansionary nature, and that Federalism is not only desirable but

necessary to have a more democratic and effective Europe able to play a key role in

a globalized world. The best way forward to meet Europe’s great internal and

external challenges is indeed the federal way. Desirable as a Federal Europe may be,

it is not clear that such a project is feasible. European federation is certainly not the

goal of the British Foreign Office, for one. In the 28-state EU it is a fact that there is

not a Federal consensus. Many countries are not willing to either give more powers

to the EU or change the decision-making rules thereby eliminating the national veto

and restricted areas. Some think that further integration is not needed nor desirable –

never mind through federalism or inter-governmentalism – while others even believe

that the EU is a threat to either national identity or workers and ordinary citizens, as

the surge of far right and left populists in the last European elections suggests.

Hence, the most logical conclusion is that this Federalist aim will be possible only in

a context of differentiated integration, with the Eurozone developing as the Federal

core of Europe. A realistic integration policy must expect that not every step along

the road to deeper integration will automatically be welcomed by every member

state and its citizens. There are countries that have already decided they do not wish

further integration within the monetary union, not to mention beyond. Therefore,

future integration has to be approached more in terms of groups of countries. Until

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recently the prospect of differentiated integration was used as a threat, designed to

put pressure on reluctant governments into agreeing to further integration.

Nowadays, differentiation in integration must be seen as an opportunity. The new

aim should be to give every member state the place that is willing and able to take

up. In sum, the new Europe that can be developed while the crisis nears its end

should have at its core the Eurozone countries, which are may be willing to move

ahead towards fiscal union and more coordinated social policies. Secondly, there are

countries whose currency system is not the Euro and may remain so for a long time.

And finally there are non-EU members, who have an interest in the EU market or

other areas, but do not wish or are not able to become EU members. We are probably

moving towards a Europe made of concentric circles. We can imagine Britain

becoming and associate member, with its membership limited to participation within

the internal market. The aim in a short term is to restore the health of the monetary

union at its core, so that it becomes again an attractive perspective. Under these

circumstances, differentiation is simply a roundabout way of achieving a united

European currency area, first step to establish an integrated fiscal and social union.

Europe cannot be built without the working class, let alone against it. Hence

federalism should be also an avenue for building a Social Europe. The federal

method must be used to agree common social standards such as the minimum wage

or to develop inter-citizen solidarity mechanisms. Restrictive fiscal federalism alone

(the surveillance model) will not do. To conclude, in today’s globalized world, where

emerging nations such as India, China, Brazil and of course Turkey are getting ready

to shape the political, economic and social destinies of our planet alongside the

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USA, the nations of Europe, which are too small by comparison, can only safeguard

their prosperity and their social achievements by joining forces and standing together

on all the key issues. This requires, sooner or later, a new step towards a federal

union.

What, then, of the non-Europeans? What of the inevitable boundary created by those

within and those without? Does not Constitutional Tolerance implode as an ethos of

public mores if it is restricted only to those chosen people with the violet passports?

Let us return to the examples mentioned above such as the new immigration

procedures which group all Community nationals together. What characterizes this

situation is that though national and Community citizens will be grouped together,

they will still have distinct passports, with independent national identities, and still

speak in their distinct tongues, or in that peculiar Eurospeak that sometimes passes

itself off as English. This is critical, because in the daily practices which I am

extolling, the public official is invited and habituated to deal with a very distinct

‘other’ but to treat him or her as if he was his own. One should not be starry-eyed or

overly naïve; but the hope and expectation is that there will be a spill-over effect: a

gradual habituation to various forms of tolerance and with it a gradual change in the

ethos of public administration which can be extended to Europeans and non-

Europeans alike. The boundary between European and ‘non-European’ is inevitable,

dictated if by nothing else by the discipline of numbers. In too large a polity the

specific gravity of the individual is so diminished that democracy except in its most

formal sense becomes impossible. But just as at the level of high politics, the

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Community experience has conditioned a different ethos of intergovernmental

interaction, so it can condition a different ethos of public interaction with all aliens.

To extol the extant constitutional arrangement of Europe is not to suggest that many

of its specifics cannot be vastly improved. The Treaty can be paired down

considerably, competences can be better protected,36and vast changes can be

introduced into its institutional arrangements. But when it is objected that there is

nothing to prevent a European constitution from being drafted in a way which would

fully recognize the very concepts and principles I have articulated, my answer is

simple: Europe has now such a constitution. Europe has charted its own brand of

constitutional federalism. It works.

36 The issue of competences is particularly acute since there has been a considerable weakening of constitutional
guarantees to the limits of Community competences, undermining Constitutional Tolerance itself. See B.Simma, J.H.H.
Weiler, M. Zoeckler, Kompetenzen und Grundrechte -- Beschränkungen der Tabakwerbung aus der Sicht des
Europarechts (Duncker & Humblot, Berlin, 1999). History teaches that formal constitutions tend to strengthen the
center, whatever the good intentions of their authors. Any formulation designed to restore constitutional discipline on
this issue can be part of a Treaty revision and would not require a constitution for it. For pragmatic proposals on this
issue see J.H.H. Weiler, A. Ballmann, U. Haltern, H. Hofmann, F. Mayer, S. Schreiner-Linford, Certain Rectangular
Problems of European Integration ("http://www.iue.it/AEL/EP/index.html") (1996).

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