Comparative
Federalism: Australia Versus India
--S M Mehedi Hasan
Introduction:
There is
no gainsaying that federal institution of different countries work
differently due to their socio-political and socio-cultural arena providing room
for comparative analysis. Although the two countries,
Australia and India, are both federal state, there are significant
differences in their federal structures .Here I have explored the nature of
both the constitutions, presented legislative and executive power, described
the role played by sub-national governments in the national decision making
and explained dispute resolution mechanisms, earning and sharing of revenues
as well as intergovernmental cooperation. Plausible connectivity between the
variable has been found and, at the final stage, some recommendations have
been given to improve Australian federal system. A good number of accessible
journal articles on federalism concerning both the countries and relevant
research reports were studied which, of course, were of great help to
complete this comparative study.
Comparison
in Terms of Nature of the Constitutions:
The
Australian Constitution is a written, a changeable but difficult, and a rigid
one that upholds bicameralism with
strong upper house , responsible government which is answerable to the
parliament, cabinet government, US
model of federalism, constitutional monarchy as well as parliamentary
democracy. Indian constitution, like the Australian Constitution, is written,
flexible but maintains considerable rigidity, up holds bicameralism, parliamentary
form of governments. India, on the other hand, is a ‘sovereign, socialist,
secular, democratic republic’ (Chaturvedi 2007, 1).
There are no special provisions relating to
certain classes and communities in Australian Constitution with reservation
seats in the federal parliament. On the other hand, Indian Constitution reserves
seats for Scheduled Castes and Scheduled Tribes (s331), and ensures
Representation of the Anglo-Indian community in the House of the People (s332)
which established asymmetrical federalism. Another asymmetrical federalism in
India has been clear through the special provisions giving special status of
a state named Jammu and Kashmir with considerable power of self-governance
(s370) whereas Australia does not have such asymmetrical features for any
state. Even in India, there are some autonomous districts and
autonomous regions in tribal areas in the (s371).On the contrary, In
Australian Constitution there is no such provision of autonomous region or
district.
The
Australian one is too difficult to change because, for the alteration, ‘it
must be passed by an absolute majority each house of the parliament’ and
after that it ‘shall be submitted in each State and Territory to the electors
qualified to vote for the election of members of the House of
Representatives’ (s128) which is too procedural and time-consuming to
complete. On the other hand, a bill to amend the Indian Constitution needs to
be passed by the Loksabha (House of the People) and the RajyaSabha( Council
of States) by a majority of not less than two-thirds of the members present
and voting and
adult suffrage is never required( s368).
How
Legislative and Executive Powers are Distributed and Shared in Australia and
India:
According to the s51 of the Australian
Constitution, the parliament has power to make laws for the peace, order and
good government of the Commonwealth with respect to forty nine subjects which,
in truth distribute power between the Commonwealth and the states and
describes concurrent powers. Here the
power dealing with issues like defense, trade, labor, commerce,
business, protection of industries are in the jurisdiction of federal
legislative body and power dealing with dealing issues like welfare, charity,
social needs are within the jurisdiction of state legislature and the residual
power are left to states( Perche 2014b,). Further, if there is clash between
the federal and the states in terms of legislation the law of the Commonwealth
will prevail (s109).
Like the Australian case, the seventh schedule (s246) of
Indian constitution assigns the powers and functions of the central
government and states and in case of clash the federal sustains. It describes
the exclusive powers of the central government in the Union List; of the
states in the State List; and powers falling under the joint jurisdiction are
mentioned in the Concurrent List (Singh 2007, 10-11). However, unlike
Australia, the residual powers goes to the Indian Union Government instead of
state governments and the central government has ‘considerable sovereign
discretion over the states under s356 creating a relatively centralized federation’
(Singh 2007, 1).
In India, executive powers are also shared by the
Parliament because executives are directly accountable to the legislature
there is fusion of legislature and executive like the Australian practice.
For instance, the President of India can be impeached for the violation of
the Constitution, which is solely to be decided by the Parliament(s61) Under the
s239 (1) of the Indian Constitution, six Territories are administered by the President
through administrators appointed by him. But, in case of Australian, the two Territories have separate sovereign
executive bodies (Cabinets) headed by Chief Ministers. Besides,
the post of Vice President (s63), unlike Australia, is prevalent in India who
works as the ex-officio chairman of the Council of States acts as President
to discharge his functions during casual vacancies or absence of the President
(s64).
In Australia, Ministerial Councils act as ‘peak bodies for policy
consultations between Commonwealth and State Ministers’,
(Sharman 1989, 107; cited in Minson
1997, 2) to hold meetings between Commonwealth and State Ministers
responsible for particular portfolios (WASCPPULA Report 1992; cited in Minson 1997,2).They
provide a ‘forum in which the component units of the federal system can come
together to arrive at a common understanding of the issues’. ( Ralph 1988,10;
cited in Minson 1997,2) ).
In addition, Ministerial
Councils play a ‘major role in the development and oversight of national
cooperative agreements and uniform legislative schemes’ (Minson 1997, 5). But,
in India, there is no Ministerial Council between the Union and State
Ministers to hold meetings on particular portfolios and coordinate
development activities and oversee different cooperative agreements.
In Australia, Council of Australian Government
(COAG), ‘an intergovernmental mechanism that brings together the Commonwealth,
States, Territories and Local Governments’( Mahon and Brennan 2012,98-9), plays a vital role as a powerful body for promoting policy reforms of national
significance and takes coordinated actions especially on issues having ‘impact on other
governments or require cooperation of other governments’ (Minson 1997,6-7;Hede 1993,201;cited in Minson
1997,6).
In contrast, in India, there is an Inter-State Council
established by the President (s263) to investigate, inquire and recommend as
well as ‘advice regarding the resolution of inter-state disputes’ but does not
deal with ‘disputes between the Union and a state’ (Sarkaria et al. 2012,833
and 842). In Australia both Ministerial
Councils and the COAG are not constitutional body, whereas Inter-state
Council of India belongs to the constitutional provisions (s263).
How Sub-national Governments are
Represented in the National Decision-Making:
In India
The Rajya Sabha( Upper House of the Union Government) members are elected by
the members of state parliament members(s80)
and the sub-national governments are represented strongly in the national
decision making and these sub-national leaders. On the other hand, in
Australia, the Senate Members are elected through adult suffrage. So there is
little scope to influence the Senate by the sub national governments in
national decision making. However, the Senate has equal representations from
each state of Australia (6 from each state) which help to maintain balance of
power between the states in national decision making. In Australia, The COAG
is represented by all states’ premiers and territories’ chief ministers, and
the Ministerial Councils are also represented by ministers of the concerned
ministries of each states and territories and participate in national
decision making. In place, the Inter-State Councils of India is represented
by the concerned states’ ministers and participate in national decision
making.
How Intergovernmental Disputes are
Resolved:
In Australia
any dispute between the commonwealth and the states or between States inter se is exclusively within the
jurisdiction of the High Court (s75).For instance, the High Court, in 2006,
‘brought down its judgment in a case of potentially enormous significance for
Australian federalism’ (Kildea and Gelber 2008, 649) through the decision on
the validity on the Commonwealth’s Workplace Relations Amendment (Work Choices)Act
2005.Like the jurisdiction of High Court of Australia, the Supreme Court of India
has been provided exclusive jurisdiction (s131) to resolve intergovernmental
disputes (Tripathy & Devkota 2010, 1).
In
Contrast, disputes related to water resources are to be resolved through
constitutional power given to the parliament of India (s262) to enact laws
related to interstate rivers and river-valleys. The Inter-State Water Dispute
Act 1956 has been promulgated so as to implement this article and the central
government is empowered to constitute a Tribunal (Section 3 - 4) and the
decision of this Tribunal is final and every party is bound to give effect to
this decision and the ‘jurisdiction of other courts is barred’ (Sarkaria et
al. 2001).
How Resources and Revenue are
Divided and Shared (fiscal federalism):
In
Australia, federal-state financial power division and sharing of resources
have created ‘vertical fiscal imbalance’
(Twomey 2014,02; Dollery et al.
2000,04).Again, the Commonwealth’s power to legislate on many areas not set
down specifically in s51the constitution, financial provisions under s96
where the High Court gave power to impose condition on states. In 1942, the
Commonwealth gained ‘monopoly on income tax which gave it the fiscal capacity
to make conditional transfers to the states’ (Mahon and Brennan 2012, 93).
Commonwealth’s power to raise customs and excises revenues (s86) as well as
High Court’s favor to the Commonwealth regarding uniform tax have empowered
the Commonwealth to leave the states ‘legally free, but financially bound to
the chariot wheels of the central government’(Deakin 1902; cited in James 2000; cited in Perche 2014b).
In India, the vertical fiscal imbalance
is as sharp as that of Australia and ‘the
assignment of functions and powers, particularly tax power, has certain
anomalies which gives financial strength to central government in comparison
to state governments’ (Pandey and Badriotti 2007,01).To clarify, taxes on
income, corporate tax, customs duties, taxes on production, taxes on wealth
from non-agricultural sources are collected the central government(Singh
2007,11;Pandey and Badriotti 2007,02).In addition, the centre is given all
residual tax powers which means that the taxes not mentioned in any of three
the lists will go the duties of the central government(Singh 2007,11).
In Australian,
Commonwealth Grants Commission plays a vital role in horizontal fiscal equalization.
In 1933, it empowered the federal government to enact fiscal equalization to
ensure the ‘rights of all citizens to an equal opportunity of being provided
with an equivalent range of public services’ (Chappel 2002, 161; cited in
Mahon and Brennan 2012, 93). Likewise, Indian Finance Commission(a mechanism
body formed under s281 of the Constitution)the address vertical imbalance
between the federal government and the states and ensures horizontal
distribution of resources among the states. Even, from time to time, the Finance
Commission recommends rescheduling and
write-off of loans to promote an incentive based
loan write-off to reduce the debt burden of the states’ (Rao and Sen 2011,.13). India’s
horizontal distribution is constitutionally ensured by the Indian Finance
Commission, whereas Australian Constitution has no provision in favor of The
Commonwealth Grants Commission. Further, in contrast , Indian Constitution
has many provisions for distribution of revenues between the Union/central
governments and the states. There are obligatory and enabling provisions like
s268, s268A. , s269, s270, s271, s272,
s275 and s276have made the horizontal distribution of resources more efficient
than Australia.
Mechanisms to Assist Intergovernmental Cooperation:
In
Australia, Council of Australian Governments (COAG) is in charge of
intergovernmental approaches to negotiate and examine processes between
cooperative institutions (Galligan 1989, 3-4;Gillespie 1994,68-9; cited in
Kildea and Gelber 2008, 651). Indian Constitution, there is a provision for
the formation of an Inter-State Council(s263) by the president to discharge
certain functions involving ‘inter-state dimension’(Sarkaria et al. 2001,
833) for “inquiring into and advising’ [s263 (a)],‘investigating’ [s263 (b)]
and ‘making recommendations’[s263(c)] upon disputes which may arise between
states or between the Union and the sates. On the contrary, there is no constitutional
provision of such Inter-State Council to resolve intergovernmental disputes
in Australia.
Recommendations:
i) Australia
can follow the constitutional amendment procedures of India because with the
space of time it has been necessary to develop new formula of governance,
policy implication and development planning. For this, easy and less
time-consuming procedure of constitutional amendment in Australia will be of
utmost value.
ii)
Like
the election procedures of Rajya Sabha( Upper House) Members of India,
Australian Upper House’s Members can be elected by the member of the States’
Assembly so as to avoid over centralization of power and to keep pressure on
the central government by the sub-national governments in national decision
making.
iii)
Australia can follow the Indian model of minimizing
disputes on Inter-State Rivers and Water –Valleys. For this Australia can get their constitution
amended or promulgates law to deal with deputes related to rivers and water
bodies.
iv) Australia
can have some asymmetrical federal features by ensuring some level of
autonomy to the remotest parts with distinct socio-cultural differences as India
did to a State and some districts with majority of tribal people.
Conclusion:
|
In fine,
federalism in Australia is at once similar and different from that of India.
Both the countries hold significant central control over states. Though Australia
has been regarded as the most ‘centralized of all the established federation’
(Alan Fenna 2007, cited in Perche 2014a), its federal institutions are mostly
working differently from those of India, ‘a relatively federalism’ (Singh 2007,
01). However, by transferring some positive federal features from India to
Australia, the federalism of Australia can be enriched to a great extent.
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