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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.
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
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
national parties, the strength of the political party in power at the Centre and its backing inStates.Th
development of the country. The Constitution of India,thus, provides for Cooperative Federalism.
What are the basic principles of Federalism and to what extent do they incorporated into the Indian
Constitution?
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
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,
2
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.
"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
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
3
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
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 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
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
Definitions:
4
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
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.
state. Federalism originates from ancient Greece. Broadly speaking, there are two approaches to
expression in the formulation of concurrent powers, an area over which both thenational and State
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
5
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
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
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
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
6
Constitution is necessary for the establishment andmaintenance of Federal Constitution and Federal
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
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
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
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,
7
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
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
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
8
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
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
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
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
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,
9
therefore, inevitable particularly in viewof the fact that recent experiments in the world of
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
10
Canada (Quebec) and the English-speakinginhabitants in Upper Canada (Ontario) and the
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
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
11
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
In co-ordinate federalismthe Commonwealth and the States were both financially and politically
the1920s and 1930s in response to both internal and external pressures. Elements of cooperative
management and budgetary policies during the Great Depression; and theestablishment of joint
12
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
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
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
13
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
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
14
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
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.
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
15
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
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
16
excluding somay recent Constitutions from the federal class, for, according to the
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.
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
1.
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
Distribution of powers-
17
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
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.
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.
governments are allowed to violate it.In India, any legislative or executive action of Union or State
issupreme. In
18
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.
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
Court’s
cannot be removed from service except in accordancewith the provisional of Article 124 (4), nor
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
19
368,certain matters, which can affect federal structure, cannot be amended byParliament alone even
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
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
v.
Union of India
20
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
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
Constitution has been just the reverse. Before the present Constitution wasframed, India was
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
Equally weak arguments are made on the basis of certain non-essential characteristics whichare
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-
i.
Appointment of Governors-
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
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 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,
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
accordance with the provisions of the constitution and enforce provisions of Article 356.4.
(i)
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
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
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
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)
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
The Judiciary-
(i)
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
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
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
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.
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
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
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
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
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
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
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
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
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
33
In the following constitutional provisions, it is pointed out that the Indian-Constitutioncontains the
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
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-
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
The changes thus contemplated (work-our) illustrate the working of the peculiar &striking feature
of the Indian-Constitution.
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
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
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:
The manner in which the executive-powers of the state shall be exercise so asnot to impede or
military-importance; &
36
c)
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
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
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.
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
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
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.
: 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-
emergency is made under Article. 352, the normaldistribution of power between the centre & the
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
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
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.
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
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-
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
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
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
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
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
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
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."
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
22
44
The basic structure this case, some of the Judges in full Constitutional Bench expressedfederalism
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
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
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
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,
- 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.
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
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
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.
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
Article 285 provides for exemption of properties of theUnion from State taxes arid similarly Article
Financial co-operation-
The whole scheme of distribution of taxing powers between the Union and the States is based on
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
Chairmanand four other member to be appointed by the President.It shall be the duty of the
49
distribution of net proceeds of taxes between the Union and States, b)
Panchayats in the States on the basis of recommendation made by the State Commission;
Art. 268
10
Art. 269
11
Art. 270.
d)
Commission.e)
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
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
national
plans, to discuss the plans prepared by the Planning Commission andmake estimates of resources
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
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.
North-Eastern Zonal CouncilFive Zonal Councils (Northern, Southern, Eastern, Western and
Central) wereconstituted by States Reorganisation Act, 1956 and North- Eastern Council
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
52
constituted in 1912 under Sections 101 and 103 of the AustralianConstitution but the High Court of
Australia held in
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
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
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)
Six Ministers of Central Cabinet nominated by the Prime Minister.The Order also provides that
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
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
54
12
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.
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
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
56
BIBLIOGRAPHY
1.
List of sources
lh
Constitutional Law of India by Prof. G.S. Pande, Tenth Edition 2007, published by M/s University
th
57
Constitutional law of India by V.D. Mahajan, Seventh Edition 1991, published by Eastern Book
Company, Lucknow
2.
www.wikipedia.com
www.legalserviceindia.com
www.ebc-india.com
www.thehindu.co.in
3.
58
List of cases referred:-
59
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
nd
Edition.
11
13
15
23
60
CHAPTER SIX
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
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
Already from the start of the European Coal and Steel Community in 1950, many
Europe becoming a federation, sometimes also called The United States of Europe 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
European integration
As of 1950, the European Coal and Steel Community started to unite European
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
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.
shown by the creation of the United States of America. Most federations have been
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
competencies, a parliament with legislative power elected by its citizens, and even a
In addition, as is typical in many federal states, the EU has a citizen’s chamber (the
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
64
a) All EU legislation should be produced according to the co-decision method and by
the Council of the European Union and not by the member states;
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
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)
economic governance. The main challenges are three: 1) how to enforce fiscal
discipline; 2) how to dwindle the structural inequalities between rich and poor
manner. In practice, these are challenges that all federal, multilevel or fiscally
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
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
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
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
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
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
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
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
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
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
several questions, including how to reconcile the new fiscal system within the Euro
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
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
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
surveillance and the classical federalist models, since the European Parliament can
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
we fail to have a proper fiscal federalism, openly agreed and democratically backed,
unelected Commission officials. Countries should think carefully about which path
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
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
legitimacy is indirect and it is not a legislative body. In contrast, we already have the
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
72
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
same time, the composition and procedures of the European institutions are based
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
73
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
the EU have retained national control of foreign and defence policy, whereas the
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. 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
74
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
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
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
75
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
European Parliament President Martin Schulz agrees with Barosso. Schulz is of the
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
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
leaders and give greater authority to the European Commission, especially the
European councils of ministers and heads of state with a chamber “of states” in the
This European political party strives for a more democratic, efficient and cohesive
12
76
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
expressions that must be preserved and promoted as a unique treasure and as the
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
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
77
The opponents of a federal Europe
However, not everyone agrees with these positive views of a federal Europe. An
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
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
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
15
16
17
78
Euroscepticism is found across political parties across the left and right spectrum and
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
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
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
18
19
79
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
In the vision of the great thinker and teacher of federalism, the late Dan Elazar,
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
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.
80
concerning European integration.22 Institutional arrangements have attracted a great
from the typical federation. In contrast with the classical model of the federal state,
Member States. The formal empowerment of, say, the European Parliament over the
Council. For its part, the Commission has had to struggle to preserve its own weight
Senate-type State chamber and the Parliament to a popular chamber, the realities of
the federal.
attention because of their apparent convergence with the experience of the federal
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).
81
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
real power. Despite many original intentions, federations end up with a concentration
constitutional norms regulating the relationship between the Union and its Member
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.
82
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
constitutional actors—the Union itself, the Member States and State organs,
European citizens, and others—is in most respects indistinguishable from that which
But there remains one huge difference: Europe’s constitutional principles, even if
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
83
greater than any other expression of sovereignty within the polity and hence the
Of course, one of the great fallacies in the art of ‘federation building’, as in nation
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
demoi who do not share, or grow to share, the sense of mutual belongingness
will be an unstable compact, as the history of Canada and modern Spain will testify.
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
84
European constitutional demos and, hence, as a matter of both normative political
does not enjoy the same kind of authority as may be found in federal states where
Community norms trump conflicting Member State norms. But this hierarchy is not
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
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
85
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
and social cohesion and solidarity among Member States’ (emphasis added). Not one
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
most domains of the Single Market. Maastricht, in the 1990s, introduced the most
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
while maintaining at the same time—and in contrast with the experience of all such
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).
86
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
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
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
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.
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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
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
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.
opposition it would create—would all, it is said, be healthy for the democratic and
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
Of greatest interest to me is the final normative and conceptual drive behind the
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
States, their organs and their peoples even when these conflict with constitutional
which has the explicit consent of its subjects instead of the current pastiche which,
must be understood against a European constitutional discourse, which for years has
in its attempts, under many guises to describe, define and understand the European
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
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,
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
Europe. For the most part, both for friends and foes of European constitutionalism
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
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
want to tweak some of the premises on which the constitutional debate is typically
There is an inevitable and scary moment in the growing up of an observant Jew and
no easy answer to the inevitable question: why observe this law? The Pauline
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submission to Nomos. To the skeptical reader one may point out that a similar
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
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
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
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
There are three relevant lessons to the constitutional and European discourse from
this parable.
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
Let us see now how these play out in the normative understanding of European
constitutionalism.
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
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
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
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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
mode.
legal hierarchy but also compromises deep values enshrined in the national
Miguel Maduro, one of the most brilliant of the new generation of European
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challenges the legal monopoly of States and the hierarchical organisation of the law
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
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.
have agencies designed to protect the constitution whose very name is similar to our
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
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
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
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
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
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 Tolerance.
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
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Europe was built on the ashes of World War II, which witnessed the most horrific
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
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
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
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
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
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
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
identity by a boundary which differentiates me from those who are unlike me. My
The call to bond with those very others in an ever closer union demands an
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In political terms, this Principle of Tolerance finds a remarkable expression in the
is, accepting the authority of the majority over the minority only within a polity
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
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
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people, the constitutional demos. They accept it as an autonomous voluntary act,
by Europe to a norm which is the aggregate expression of other wills, other political
type of political community one unique feature of which is that very willingness to
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
constitutes an act of true liberty and emancipation from collective self-arrogance and
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
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,
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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
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
Think, too, of the judicial function, ranging from the neighbourhood giudice
I have deliberately chosen examples which are both daily and commonplace but
which also overturn what until recently would have been considered important
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
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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
concealed virtues.
Conclusion
One of the main ideas of the proponents of a federal Europe is that in an age of
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
constitution, the British reservations against a federal Europe and the increasingly
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.
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 –
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
core of Europe. A realistic integration policy must expect that not every step along
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,
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recently the prospect of differentiated integration was used as a threat, designed to
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
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
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
(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
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
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
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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