Federalism in South Asia: a constitutional analysis of India and Pakistan

Abstract

In South Asia, federalism has significant importance, which is the primary cause of the partition of Indo-Pak. Muslim League and Congress ideologically supported federalism. Simultaneously, Congress supports centralization, and the Muslim League prefers decentralization models. These opposite federalism models do not significantly support both states’ cultural norms and values. Therefore, the question arises: what type of federalism was adopted by Indo-Pak regions? How do constitutions differentiate the current federal models? Before 1973, both countries constitutionally followed the centralized tendencies and managed them in different dimensions. The Indian federalism model of federation succeeded in regulating ethnic conflicts. However, the Pakistani model failed to accommodate the cultural polarization that caused the disintegration of Bengal from Pakistan in 1973. This study analyzed and examined the constitutional analogous of both federal models. Therefore, it is essential to attempt the comparative analysis of the Indo-Pak Federal Models in light of the federalism theory. The federalist assumed the principles, i.e. Supremacy of the Constitution, Division of powers, Bicameralism, and Judicial review.

Keywords:

• Federalism
• comparative perspective
• constitutional history
• India
• Pakistan

Reviewing Editor:

• Samuel Adu-Gyamfi, History and Political Studies, Kwame Nkrumah University of Scienceand Technology College of Arts and Social Science, Kumasi, Ashanti, Ghana

Subjects:

• Comparative Politics; History: Theory, Method & Historiography; Asian History; Cultural Studies

1. Introduction

Federalism in South Asia has remained a very contentious issue because it caused the partition of the subcontinent, India and Pakistan. Bangladesh was further liberated from Pakistan. After the independence, various separatist movements emerged in both states, demanding provincial autonomy. The clash on the nature of the federal form of government emerged between the two biggest political parties, Congress and the Muslim League, when the British government introduced federal nature reforms in the subcontinent. Historically, it can be analyzed that the freedom movement was a constant war of arguments between Congress and the Muslim League. Muslim League alleged Congress for supporting the unitary form of government, while Congress recalled the League as a communal political party representing only the Muslims of India. The different proposed schemes of the Muslim League and Congress have never mended their ways of uniting the independence struggle. Therefore, it led both political forces to create their paths and resulted in the partition of the subcontinent. Indo-Pak partition caused the mega-influx of migration in history. After the partition, federalism generated new challenges and opportunities for politicians and policymakers.

Further religious and cultural polarization put the wood on the fire. After independence, India succeeded in bringing new constitutional enforcement; nonetheless, Pakistan failed to introduce a constitution. Therefore, the question of federalism has remained influential in the pre and post-partition times. Wheare (1963) categorized India and Pakistan as quasi-federations because neither federations have basic federalism features. Tunio and Nabi (2021) analyzed Pakistan as an asymmetric federalist country. Wheare (1963) examined that both countries adopted the centrist federal form of governance and adopted the different types of power-sharing lists such as Federal, Provincial, and Concurrent. This power-sharing formula was derived from the 1935 Government Act of India that the British government introduced.

However, Congress and the Muslim League rejected this colonial Act. However, it played a vital role in the foundation of the Indo-Pak Constitution. During the constitutional stabilization, Mahindra Prasad explained that India has a successful working federal system. However, Pakistan failed as a federal republic with the dismemberment of Bengal in 1971 (Allison, 2015). Mahindra further boasts about the federation of India, and he claims that India is a well-developed federation, often compared with the U.S.A. and Canada. The Indian federation has successfully represented and accommodated various ethnic communities within a sizeable constitutional framework territorial in multiple spheres of Government (Allison, 2015). However, Federalism under the 1973 Constitution did not become a reality, and Pakistan’s Prime Minister, Zulfiqar Ali Bhutto, failed to prove that Pakistan is a federalist state (Allison, 2015). Thus, some crucial question arises: what type of federalism was adopted by Indo-Pak regions? How do constitutions differentiate the current federal models? How did the state constitutions come into being? History proved that the Indian design of federalism was better because of the secular character, and it did not need to use religion to suppress the linguistic demands for the separate lingual Province.

In the Pakistani federation, religion possessed greater importance. The project of Islamisation of the state started after the objectives resolution was passed in 1949. In the Constitution of Pakistan, national unity was achieved based on religion and Urdu Language. However, the linguistic and ethnic identities were submerged and were regarded as secondary. Allison (2015) explained the dramatic change in the federalism of India that was introduced after the regimes of Jawaharlal and Indira Gandhi. Prasad calls the period of prime minister-ship of Jawaharlal Laal Nehru an authoritarian, and Indira Gandhi’s regime w a centrist model. The federal model transformation was started in the middle of 1990 with the advent of the coalition government in India (Allison, 2015). Likewise, Federalism in Pakistan after the Eighteenth Constitutional Amendment dramatically changed the federal design, but the ruling elite created hurdles in its implementation. The role of the ruling elite in India and Pakistan concerning the decentralization of powers from the Centre to Provinces has been negative. It is one of the factors that there is unbalanced power sharing in both federations. Since 2014, the Bharatiya Janata Party’s Government in India and the Pakistan Tahreek e Insaf led Government in Pakistan ha created acute challenges for decentralization. The situation in both countries does not seem optimistic about letting provinces enjoy their share of provincial autonomy. The historical constitutional dynamics of the politics of federalism in the subcontinent will be analyzed to understand the different models of both countries.

2. Nature of federalism in Pakistan and constitution supremacy

The First Constitution in Pakistan was adopted in 1956. The Constitution of 1956 of Pakistan suggested a federal and parliamentary system of governance. The nature of the distribution of legislative powers between the Centre and provinces was not different from the way the British Government was previously introduced in the subcontinent. It looks in the appearance that federating units have been given more powers, but practically, it was not like that. The Federal Government had more powers in the legislative and executive domains. Using these powers, the Centre could intervene in the Province’s sphere. By those powers, the Centre can even suspend the democratic process indefinitely (Ahmed, 1993).

The Constitution of 1956 suggested unicameral legislature, and this principle was against the grunt norm of federalism. The Constitution adopted the parity formula between East and West Pakistan. It gave equal powers to both wings of Pakistan. It is a fact that in the first decade of Pakistan, it was never tried to introduce a federal constitution. The 1956 Constitution was so centralized that it paved the way for the birth of the movement for provincial autonomy in Bengal (Faiz, 2015). Constitution of 1956 had no federal principles. It was a quasi-federal Constitution. The federating unit, a minority, made the local majority, taking advantage of exercising self-governance due to the robust Centre (Adeney, 2016).

Both constitutions of Pakistan, 1956 and 1962, were based on the One-Unit Scheme. Under this scheme, all three small provinces, Sindh, Khyber Pakhtunkhwa, Balochistan, and princely states, were merged with Punjab into one West Pakistan province. This one-unit scheme butchered the dual principle of federalism and buried the separate identities of different ethnicities, which they have had for hundreds of years (Ahmed, 1993).

In the dictatorial regime of Ayoub Khan, the second-tier provincial government was abolished. The provincial government is one of the prerequisites of federalism. In a federation, powers are distributed between the federal and state governments. Still, the second tier was unnecessary in Ayoub’s polity, and that state structure looked like a unitary state. In Pakistan, ethno-nationalists represent themselves on this second tier and struggle for provincial autonomy. The local government system which Ayuob Khan introduced was limited in power. Cheema and Khan (2003) wrote that despite their repeated promulgation by the authoritarian Centre, local governments never got recognition as a formal third-tier government. Besides this, when local governments were first established in the area that now constitutes Pakistan, they had highly circumscribed functions and members nominated by the bureaucracy, thereby establishing a tradition of bureaucratic control over local subjects.

The Constitution of 1962 Pakistan was implemented on June 8, 1962, giving the President discretionary powers. However, it suggested a Presidential form of government. The Constitution was so reactionary and conservative that it had no fundamental rights in the first draft. 1962 constitution was contrary to the theory of federalism. Likewise, the Constitution of 1956 had a unicameral legislature, Ahmed and Faiz. The 1956 constitution alienated Bengalis, and their ethno-nationalist movement got more paces in the regime. However, the military dictatorship did not create an ambience for reconciliation but imposed its will through the stick. It led to the disintegration of Pakistan. Ayoub’s dictatorial regime morphed into another Martial rule of Yahya Khan. During Yahya’s rule, East Pakistan was separated and became an independent state of Bangladesh on December 16, 1971.

Pakistan became a single contiguous piece of land with four provinces after the dismemberment of Bengal. Baluchistan got the status of a Province. The Constitution of 1973 was promulgated on August 14, 1973. This Constitution was a consensus Constitution. Musarat believed that this Constitution, unlike the 1956 and the Constitution 1962, suggested bicameralism. The parliamentary form of government was also introduced in this Constitution. The Prime Minister was the chief executive and had a strong position (Faiz, 2015). The Senate came into form as the upper house but had few powers. Khalid (2020) criticized the Constitution as it has no such provisions guaranteeing to protect the federating units from federal intervention. The Constitution had a similar centrist trend of empowering the executive.

Jami calls this unconstitutional constitution because the Constituent Assembly, which had made the Constitution, was not a competent authority to make a Constitution. This Constituent Assembly occurred when Bengal was part of Pakistan (Jami, 2009). After the dismemberment of Bengal, It was necessary to hold re-election and get a mandate in a new Pakistan. Jami analyzed that the Constitution of 1973 continued the Colonial Act of 1935 in the changed circumstances. The Constitution provided less autonomy to the provinces than the Act of 1935. Therefore, the history of federalism in Pakistan is a case of the adage ‘two steps forward, one step backward (Waseem-Lums, 2010).

The Constitution of 1973 was many times mutilated by the elected leaders as well as dictators. Zulfiqar Ali Bhutto, the founder of the 1973 Constitution, started initial steps to mutilate it. Zia-ul-Haque accomplished the remaining unfinished work of Bhutto by making the 8th amendment to that Constitution. This amendment incorporated Article 58(2B), which impacted the democratic process. This article gave the President the power to dissolve the national assembly. The President of Pakistan did not make any elected government successful in completing its term till 2013. Finally, the 13th amendment in the second tenure of Nawaz Sharif was passed quickly to restore the spirit of the Constitution of 1973. In the 17th Amendment, Musharaf again mutilated the Constitution and resuscitated Article 58(2b).

There has been an excellent understanding among the political parties in the dictatorial era of Musharraf, especially among the political parties Muslim League (N) and the Peoples Party. The Nawaz League did not learn before the Martial of Musharraf that there could be no permanent darling of the Establishment. After the era of Musharraf, there were some serious attempts to revive the 1973 Constitution and amend it positively to pave the way for the growth of democracy. In this regard, the political parties P.P.P. and Muslim League (N), along with other small political parties, came closer to one another. That cooperation among political parties resulted in the signing of the Charter of Democracy 2006 in London. The Charter of Democracy created the ground for forming the Special Parliamentary Committee for Constitutional Reform (S.P.C.C.R.). Raza Rabbani headed the Committee. It had 27 members. There were nine members from major political parties: Pakistan Muslim League (N), Pakistan People’s Party, and Muslim League (Q). The remaining members were from small parties (Waseem-Lums, 2010). The reform committee passed the 18th amendment in the Constitution in April 2010.

The primary feature of the 18th amendment was abolishing the concurrent list, which had forty-seven subjects in the list. The federal government had a legislative monopoly over the items listed in the Concurrent list as both levels of government had jurisdiction authority on that list. However, the federal list contains 67 subjects (Adeney, 2012). The political parties increasingly raised the demand for abolition at different times. Its reason was a word of assurance given by Zulfiqar Ali Bhutto to Hasil Bizenjo that after some years, a Concurrent list of powers would be transferred to the provinces (Adeney, 2012). There is a single federalist list of powers under the federal government’s jurisdiction, which has two parts. Part I of the federalist comes into the federal domain; however, in Part II, the Federal and Provincial Governments can legislate. The Council of Common Interests adjudicates the disputes between the Federal and Provinces in the subjects mentioned in the second part of the list. With the dissolution of the Concurrent list, the subjects in the list were devolved into provinces, and seventeen Ministries were formed. It was the only amendment for which the deadline was set for implementing the 18th amendment. The deadline for the implementation of devolution was June 30, 2011. July 1 was celebrated as Provincial Autonomy Day. The provinces have apprehensions that unnecessary secrecy has been created about the transferring of subjects after the deadline of July 30, 2011, which killed the provinces’ initial zeal (Faiz, 2015). In the 18th amendment, the Sindh government has some apprehension about the collection and distribution of Zakat (Faiz, 2015). The seasoned leader of Sindh and the Chairman of Pakistan People’s Party- Shaheed Bhutto, Ginwa, believes that the 18th amendment did not guarantee the rights of provinces.¹ However, the ignorance and neglect of respecting the provinces is that our country took nearly 63 years to correct the spelling of the names of provinces. Finally, Article 1 was amended through this amendment, colonial names were corrected, Sind was replaced with Sindh, Baluchistan with Balochistan, and N.W.F.P was changed to Khyber Pakhtunkhwa.²

The Consensus National Finance Award (N.F.C.) was considered the immense achievement of that period. Previously, in the Musharraf regime 2006, there could not have been consensus on the N.F.C. Pervez Musharraf allotted a 40% share to the provinces with one % annually, increasing up to 50% in five years. It was a breakthrough in N.F.C. in 2009. The award from the divisible pool increased the provincial share to 56% from 47% for 2010–2011. The provincial share for the coming four years was fixed at 57.5%. There were four indicators of the divisible pool: population 82%, poverty 10.5%, revenue generation 5%, and inverse population density 2.7%. The Province of Punjab got 51.74%, Sindh 24.55%, Khyber Pakhtunkhwa 14.62%, and Balochistan 9.09%³. It was a remarkable achievement to get something better in countries like Pakistan, where more incredible changes happen after decades of struggle. The contribution of the Eighteenth Amendment is appreciable in that the share of provinces cannot be decreased from the previously awarded in the divisible pool to provinces. There has been fixed monitoring by the correspondent finance Ministers of federal and Provincial twice a year for evaluation. They have to submit the reports to both National and provincial assemblies.⁴

With this 7^th National Finance Award, it is calculated that RS 300 billion would be part of the budgets of four provinces in Pakistan from the federal account. Musharraf’s government was allotted to this criterion so an amount of RS 178 billion more has been transferred to the provinces from the federal government’s exchequer.⁵This progressive task made it possible to increase provinces’ share from 30% to 36%. This 6% increase seems to be a significant step towards creating progressive fiscal federalism. But comparatively, in other states like Switzerland, Canada, Belgium, and Germany, provincial governments spend 60% to 70% in those states. Inother federations like India, the United States, Spain, and Mexico, provincial spending is 45% to 55% in those countries. If one compares Pakistan with other states in the World, in Pakistan, there is still 36%, which is an insufficient amount comparatively.⁶ Aisha Hafeez (2015) believed that Pakistan still has reached the intermediate level of decentralization.⁷ There are many apprehensions of provinces regarding transferring amounts to many institutions.

3. Nature of federalism in India

After independence, it was challenging for the leadership of Congress to address the question of diversity in India. Diversity is considered very positive concerning creativity, development, and prosperity if it is rightly utilized for that particular cause. In this regard, McGarry and O’Leary state the different responses of states in managing diversity. ‘A state can respond to diversity within its borders in many ways. It can seek to eliminate or to manage this diversity’ ⁸Congress for managing diversity was polarized on its stance in British India. Congress tried to manage linguistic diversity by supporting the territorial reorganization of provinces on a linguistic basis from the 1920s. After Independence, Nehru was much reluctant to adopt that policy. On that matter, the leadership of Congress was divided, and that pressure from within the party convinced Nehru to follow the progressive policy that Congress supported from its inception. Adeney (2016) narrated the facts in this way:

‘Nehru and the Congress significantly retreated from their pre-independence commitment to linguistic reorganization even though the Congress organization had been structured around language since the 1920s’. Partition and the elite’s fear of further disintegration gave Nehru and Patel the pretext required to ignore the demand, but it was not the cause of the U-turn. The absence of linguistic reorganization was the one element of constitutional form that could be directly related to Nehru’s attempt to create a majoritarian state. However, it was unsuccessful, and Congress was divided over the issue. The Congress president in 1948, Telugu-speaking Pattabhi Sitaramayya, called for linguistic reorganization. No matter how strong Nehru’s modernizing tendencies, against which he saw arrayed the forces of provincialism, the strength of linguistic identities expressed within ‘Nehru’s own Congress Party ensured that they could not be ignored’. After prolonged agitation, the disagreement on the reorganization of provinces was finally agreed upon in 1953. The demand to create Andhra Pradesh was conceded. The States Reorganization Commission (S.R.C.) was created, its terms of reference being national unity and economic and administrative considerations. In his statement announcing its appointment, Nehru acknowledged that ‘the language and culture of an area have undoubted importance’.⁹

There was a fundamental difference in policy-making processes in Pakistan and India. Polarization existed in both countries on Constitution making. Still, Congress was an organized political party that could not neglect the stance and demand and agitation from provincial leadership and finally accommodated their demand, though reluctantly. However, the Muslim League in Pakistan was not an organized party. Its leadership was alien in the newly established country because the Muslim League’s legislators had no roots in this new region where Pakistan was created. The Survival of Muslim League needed to strengthen its grassroots by adopting the accommodation approach to diversity in Pakistan by giving space to provincial leadership to play its role in constitutional making and nation-building process. The leadership of the Muslim League became more distanced from the ethno-nationalist leaders. This attitude of the Muslim League failed to make correct choices. They failed to strengthen themselves.

After independence, linguistic identities were given a multicultural ‘nod’ in Article 345 of the Constitution. It provided that subject to the provisions of articles 346 and 347, the Legislature of a State may by law adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purposes of the state.¹⁰

The S.R.C. eventually reorganized the majority of the federal states around linguistic groups.¹¹ In 1956, on the recommendations of the States Reorganization Commission, all 27 states were reorganized on a linguistic basis into 14 states, each with a dominant regional language. Subsequently, reorganizations increased the number of states to the present 28, in addition to six territories administered directly by the Union Government.¹²

Another factor addressed by the Congress and Muslim League Leadership was that Congress did not let religion in the Constitution-making and nation-building. While Pakistan’s emphasis on religion. It established Pakistan as the Islamic Republic of Pakistan and tried to unite and amalgamate all nations in the name of Islam. Urdu was imposed on all ethnic groups as an Islamic language. In a newborn state, everything was legitimized based on religion. The legitimacy crisis of the Muslim League became a problem when it applied religion to most of its policies. ‘The status of the religious minorities was not defined by equality’. It was because Muslim and Pakistani identities were interchangeable in the new state, and Islam was constitutionalized as the dominant identity. The 1956 Constitution was entitled ‘The Islamic Republic of Pakistan’, and its preamble started with the statement that ‘sovereignty over the entire Universe belongs to Allah Almighty alone’. In addition, ‘the President of Pakistan had to be a Muslim’.¹³ Other than all, the Muslim League did not become a voice for ethnicities by giving importance to the voice of ethnic leaders. However, its leadership did not heed suggestions even proposed within the Muslim League by the prominent Muslim leaguers. Suhrawardy understands that hierarchy was, therefore, constitutionalized. In 1947, Husain Shaheed Suhrawardy tried to open membership of the League to Hindus but was rebuffed, leading Talbot to comment that ‘ideology took precedence over nation-building’.¹⁴ In comparison, ongress reacted very differently to the religious acts. Nehru would have preferred that religion have no place in public life, a stance favoring an integrationist strategy, relegating all religious identities to the private sphere.¹⁵

The situations changed concerning the adaptation of policies. Like Pakistan, India is also a highly centrist federation. Still, unlike Pakistan, its leadership reluctantly adopted an integrationist approach for ethnic groups and made the Constitution of India on secular principles. Consequently, Pakistan’s federation failed to safeguard Pakistan’s unity and disintegrated after conducting the first General Elections. However, the Indian federation model remains successful in protecting India from disintegration.

4. Comparative analysis of federalism in India and Pakistan

4.1. Constitution of India and federalism

Unlike Pakistan, India successfully got its Constitution after three years on January 26, 1950. Unlike Pakistan, India successfully initiated its journey for supremacy of the Constitution and strengthened the democratic forces. India also became successful in strengthening democracy, and finally, it became the largest democracy in the World. After the formation of Pakistan, it experienced unprecedented incidents. First, its Constitution was significantly delayed nearly after the nine years of independence. That Constitution could not survive it and fell prey to the hands of the military and bureaucrats. Before starting democracy, the ashes of the coup de’ tat was decreased. The Indian Constitution, like Pakistan’s, derived its authority from the colonial Act of 1935, which the League and Congress opposed. Both Constitutions of India and Pakistan inherited their length and characters from the 1935 Act. Indian Constitution, like its population, became the World’s longest Constitution with 395 articles divided into 22 parts, 12 schedules, and three appendices.¹⁶ The Constitution doesn’t call the Republic of India a federation. Still, it was named the ‘Union of States’. The Union had 28 states, six Union territories, and one National Capital Territory. The Constitution is generally flexible but rigid in many federal matters that pertain to the states. Any change in the ‘‘federal’’ provisions requires a special two-thirds majority in parliament and ratification by at least half of the legislatures of states.¹⁷

4.2. Supremacy of constitution

The supremacy of the Constitution is a significant element for a viable federation because the other elements and requirements of the federation are based on this. The Constitution defines the domain of national Government and Regional Government. It guarantees the division of powers. Therefore, the essence of federalism cannot be imbued in the federation without the supremacy of the Constitution. It is a document that makes national and regional governments not subordinate but independent of each government. Each government derives its authority from the Constitution, not the other level of government. The authority of the regional government is not from the national government but the Constitution; likewise, the source of the national government is the Constitution but not the regional government. The power either lies in the executive, legislative, and judicial or in national or regional government and is subordinate to the Constitution.¹⁸ The supremacy of the Constitution makes it very necessary that the Constitution must be written and rigid. The unwritten Constitution will create numerous problems. The Constitution is an agreement between the governments. If an agreement is not written, the powers of national and regional governments will not be defined and will supersede the domain of other levels of government. There will be no constitutional sanctity, and without the supremacy of the Constitution, no federation will evolve in its true essence (Ahmed, 1993).

Dicey (1915) suggested that the Constitution must be a written document and, if possible, a document in which terms open to no misapprehensions.¹⁹ He emphasizes the other point that the Constitution must be rigid and inexpensive. The provision of the Constitution cannot be changed with illegal maneuvering. If amended, there could be due process, and it should be followed with the consent of the federal government and unit government.²⁰ This rigidness of the Constitution serves the spirit of the federation. India’s Constitution is flexible. ‘He understands the rigidity of the Constitution as faulty:’ One can safely say that the Indian Federation will not suffer from the faults of rigidity or legalism. ‘Its distinguishing feature is that it is a flexible federation’.²¹

The ease or difficulty with which a constitution may be amended has come to be used by constitutional theorists as the primary measure of its ‘flexibility’ or ‘rigidity’. By this yardstick, the Indian Constitution during the decade and a half of its existence has proved remarkably flexible, in fact, too flexible for the critics who charge that the seventeen amendments to it have destroyed the ‘sanctity’ of the Constitution. The consideration of flexibility should also consider the changes that can be brought into a constitution by custom and usage without resorting to amendment. By this yardstick, too, the Indian Constitution has proved flexible—as the effects of national planning on the federal structure show. The amending process has proved one of the most ably conceived aspects of the Constitution. Although it appears complicated, it is diverse, providing three ways of ascending difficulty for altering the Constitution. Specific provisions of the Constitution may be amended by a simple majority in parliament and others by a two-thirds majority; amendments to a third category of provisions must be ratified by one-half of the states. These mechanisms have worked, as demonstrated by the ease of amendment. The ‘wise variety’ of the amending process has been praised by Wheare (1963), commented that it ‘strikes a good balance’ by protecting the states’ rights while leaving the remainder of the Constitution easy to amend.²²

4.3. Division of powers

The theory of federalism is based on the division of powers principle that powers between the Central and provincial governments should be demarcated in the Constitution. However, powers in the Constitution should be divided to give the unit’s government more powers so that the Centre and both governments would not be able to intervene. That principle of federalism is not correctly applied in South-Asian federations. In the division process, there are more powers in legislation, administration, and execution. The Central Government is given more powers, and it is also given authority in the name of emergency. On any other issue, it can intervene in the domain of units.

Akhtar Majeed (2005) wrote that, ‘The Constitution tilts in favor of the Union in the distribution of powers and revenue resources. The outcome is that the Union is invested with wider jurisdiction for its legislative and executive authority operation than other federal systems. The Union can violate even the state boundaries by passing a bill in parliament with a simple majority without any consent of the state legislative Assembly. Louis writes in this regard that India has an indestructible Union; its states’ borders are themselves violable. Under Article 3, the Union government has the power to alter the boundaries of an existing state through the division of its territory or the addition or removal of certain territories. These powers can be initiated by the approval of a simple majority in parliament; they do not require approval by the states concerned’.²³

The distribution of powers in the Constitution of India is based on the Indian Act 1935, which contains three lists: Federal, Provincial, and Concurrent. The British government adopted this power distribution model to fulfill its colonial interests. This Act was highly opposed by both political parties, Congress and the Muslim League (Ahmed, 1993). The irony of history is that the Indian Act of 1935 remained a great model for Indian and Pakistani rulers to depend on their Constitutions in Independent states. Akhtar Majeed (2005) mentioned the powers division in the Indian Constitution in this way, and the union list has exclusive powers to legislate on; they are 97 subjects. The Concurrent list contains 47 subjects. They are also under the Union’s jurisdiction. Though the Union shares authority on Concurrent subjects with provinces, in case of conflict, the Union has priority. However, the residuary powers are also vested in the Union.²⁴

4.4. Bicameralism

Bicameralism is the other important criterion for a federal state; however, it is found in unitary government setups such as in England, but it is an essential criterion for federation. The federal legislature, having two chambers, the upper and lower house, gives the mode of representation. The lower house of the legislature is generally represented based on population and elected through direct election. However, the Upper house is the house for states or provinces. The equal number of seats is allocated to states equally whether the state is bigger or smaller. It is the upper house which determines the essence of the federation. If this house has more extraordinary powers, the essence of federalism lies in that country. The Senate is mighty in the U.S.A. and is the modal federation for all other federations. The upper house is formed in the federal state because lower houses cannot override the difference of states on any law-making problem. Watt similarly writes that the’’ primary role of most of the federal second chamber in the federations is reviewing the federal legislation intending to bring to bear upon it regional and minority interests and concerns’.’²⁵

The Indian Constitution establishes a Westminster-style parliamentary federation in which the lower house of parliament (Lok Sabha) is more powerful politically than the Upper house (Rajya Sabha). The government’s primary responsibility is to this house rather than the Upper house of states.²⁶ However, in the federation, provinces are represented in the Upper house based on equality, while the lower house population is represented. The more legislative powers vested in the Upper house, the more states become confident and get more balanced power than the Upper House. Tillin (2019) considered that the model follows that proposed in the Government of India Act of 1935, as well as the Nehru Committee Report of 1928. Relatively little consideration was given during constitutional debates of the 1920s and 1930s to the idea of a federal second chamber with equal representation of states.²⁷ Louise further brings up Granville Austin’s quoted statement that the Upper house in British India was not represented equally. Austin writes in this way; ‘Perspective that why in the colonial era in the 1920s and 1930s, it was not thought of adopting a principle of equal representation of states in the upper house is that, maybe the fear that equal representation for all constituent units would ultimately have led to the provinces being sidelined by the princely states which were far greater in number:’²⁸

Louise further writes about the powers of the upper house; ‘The Rajya Sabha can initiate legislation (except for money bills which it can neither originate nor reject), and it must discuss the budget. Its members sit on parliamentary standing committees, and it has an effective veto on constitutional amendments. But when there is a deadlock between the two houses, a joint session of both houses of parliament can be called. It has only occurred three times in India’s history (1961, 1978, and 2002), but has allowed the Lok Sabha to overrule opposition from the Rajya Sabha’.²⁹

4.5. Independence of judiciary

Dicey understands that this is the beauty of federalism: the judiciary is the equaling organ with the legislature and executive. He writes about the U.S. Constitution in these words, ‘‘Every act of congress, every act of the legislature of a state, every part of the constitution of any state, repugnant to the constitution are void’‘³⁰ Similarly, in the 1973 Constitution, the Act of legislature and executive which is repugnant to the Constitution is null and void. In the unitary system, legislature influences the judiciary (Ahmed, 1993), as Dicey writes, ‘In England, every judge must in giving judgment obey every act of parliament while hearing the case’.³¹ Dicey likes the idea of judicial review, and he points out the courts are encouraged with due process ‘‘ How the courts of the state are encouraged to be the guardians of the Constitution, state courts can summon the case related to the interpretation of the Constitution’’³² The Indian Constitution has an independent judiciary and has the authority of judicial review (Table 1).

Table 1. Comparative analysis of federalism in India and Pakistan.

Principle of Federalism	India	Pakistan
Supremacy of Constitution	- Constitutional Supremacy - the principle of constitutional supremacy guides India’s federal structure. The Indian Constitution is the highest legal authority, and all governmental powers and actions must adhere to its provisions. Emergency was once declared. Indira Gandhi declared a state of emergency in 1975	- Constitutional Supremacy - Pakistan also upholds the principle of constitutional supremacy, with the Constitution being the supreme law of the land. It lays down the framework for federalism and governs the distribution of powers between the central and provincial governments. However, practically, the Constitution of Pakistan has been suspended four times with the imposition of coup de’ tat
Division of Powers	- Union and State Lists - India follows a division of powers between the central government and state governments, outlined in the Seventh Schedule of the Constitution. The Union List includes subjects exclusively under the central government’s jurisdiction, while the State List covers subjects within the purview of state governments. The Concurrent List contains subjects on which both levels of government can legislate. Concurrent of India gives more authority to the Centre than the provinces. Residuary powers rest at the legislature.	- Federal and Provincial Lists - Pakistan’s division of powers is stipulated in its Constitution. The federal government exercises authority over subjects listed in the Federal Legislative List, while provincial governments handle issues listed in the Provincial Legislative List. Both levels can legislate on matters in the Concurrent Legislative List. Concurrent legislative lists were abolished after the 18th Amendment. The powers have been devolved to provinces, but practically, the backdoor channel of federal ministries has been established.
Bicameralism	- Rajya Sabha and Lok Sabha - India’s federal structure includes a bicameral legislature at the national level. The Rajya Sabha (Council of States) represents states and union territories, while the Lok Sabha (House of the People) represents the people. This dual structure helps maintain a balance of power. However, the upper house of India does not have an equal representation of units, while the representation of units in the Rajya Sabha is based on the population.	- Senate and National Assembly - Pakistan also employs bicameralism in its federal structure. The Senate represents the provinces, with each province having an equal number of seats. The National Assembly represents the people of Pakistan, with members elected based on population. Senate has less powers. It cannot initiate the move on money bills.
Judicial Review	- Supreme Court of India - The Supreme Court of India can conduct judicial review. It ensures that laws and actions, whether by the central or state governments, comply with the Constitution. It plays a pivotal role in upholding federal principles in India.	Supreme Court of Pakistan - The Supreme Court of Pakistan exercises judicial review, ensuring that laws and actions conform to the Constitution. It is responsible for safeguarding federalism by addressing disputes between the federal and provincial governments and upholding constitutional rights. Supreme Court has remained practically ineffective in bypassing fundamental rights.

Source: The Constitution of Pakistan; The Constitution of India.

5. Conclusion

In the subcontinent, federalism was always debated before and after the partition. The territorial diversity, colonial experience, and different political parties had various ideologies and goals. After the partition, both countries embarked on divergent federalism paths. India became one of the largest democracies in the World, and Pakistan country experienced frequent, andlongest-successful military dictatorships. Authoritarianism is more prone in India’s every sphere of the policy-making process. It led to the adoption of a centralized federation, simultaneously the federation of Pakistan. India adopted the integrationist approach to managing diversity and linguistic groups that secularized the Constitution of India. These different strategies positively impact and protect India from disintegration.

In India, early 1990s, the dominance of Congress diminished, and coalition governments formed over different passages. A more decentralized federation of India emerged and continued to the first decade of the twenty-first century. Later, with the emergence of a single party in power, not this time Congress but now the Bharatiya Janata Party, federalism’s decentralization and competition for nature diminished. The Only federal character of India was not affected, but its secular outlook and approach to diversity are at stake in the B.J.P.-dominated government. However, the story of Pakistan is very different in accommodating ethnic groups and diversity. Their strategy was alienating linguistic groups and diversity while integrating religion into nation-building. This approach of the Pakistani ruling elite could not protect Pakistan efficiently. However, the federal model of Pakistan failed and disintegrated in 1970. After the 1973 constitution, a so-called consensus constitution could not flourish democracy. In this way, throughout the subsequent history of Pakistan, centralized tendencies remained dominant in Pakistan, especially in the dictatorial regimes. The drastic change in federal character came in 2010 when the 18th Constitutional amendment was passed in the 1973 Constitution, which devolved the Concurrent legislative list to the provinces. It contained 47 subjects. The dramatic amendment vastly changed the character and nature of the federation of Pakistan. However, the 18th Amendment was not practically fully implanted due to the hindrances created by Pakistan’s ruling elite and military bureaucracy. In this way, the 18th Amendment did not practically change the character of the state. However, the 18thAmendment did not touch on the questions of secularization of the state, diversity, and ethnicity.

Moreover, the federation of Pakistan has gained more religious color in recent history by adopting a reconciliatory policy with religious groups. Both federations, India and Pakistan, are currently ruled by naïve and populous leaders who do not have deep socio-political understandings of their respective countries. Both countries are suffering from centralized tendencies and authoritarianism. The constitutions of India and Pakistan were, to a large extent, similar and, to some extent, different, but later, one character made the difference.

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Notes on contributors

Abdul Shakoor Chandio

Abdul Shakoor Chandio a lecturer at Shaheed Zulfiqar Ali Bhutto University of Law. Currently, he is also a dedicated Ph.D. scholar at University of Karachi, specializing in federalism. His insightful articles on federalism contribute significantly to academic discourse, reflecting his commitment to advancing understanding. With a multifaceted role as an educator, researcher, and author, Abdul Shakoor is shaping the intellectual landscape of Pakistan’s legal and political sphere, making noteworthy strides in both education and research.

Fayaz Hussain Tunio

Dr. Fayaz Hussain Tunio is a distinguished scholar with a Ph.D. in Economics, specializing in Public Finance. Currently serving as an Assistant Professor in Economics at Shaheed Zulfiqar Ali Bhutto University of Law, Dr. Tunio’s academic expertise extends to the evolution of federalism and Neo-Public Finance Theories, showcasing a commitment to advancing economic thought. Dr. Tunio possesses extensive knowledge in intergovernmental relations, public policy, government tax management, and financial management. With a robust academic background and a commitment to pushing the boundaries of economic understanding, Dr. Fayaz Hussain Tunio is a valuable asset to the academic community and is poised to contribute significantly to Cogent publications.

Abdul Ghaffar Korai

Abdul Gaffar Korai is an esteemed Associate Professor in Law at Shaheed Zulfiqar Ali Bhutto University of Law, where he imparts comprehensive legal knowledge to students. Concurrently, he is a dedicated Ph.D. scholar at the same institution, specializing in constitutional law. Abdul Gaffar Korai’s research focuses on intricate aspects of constitutional principles, showcasing his commitment to advancing legal scholarship. As an author, his publications contribute valuable insights to the field, marking him as a noteworthy figure in the academic community dedicated to constitutional studies.

Notes

1 Ginwa Bhutto Dawn, April 5,2010.

2 Eighteenth Amendment Act, 2010.

3 Mohammed Wasim, Federalism in Pakistan (LUMS, 2010), p,23.

4 Ibid.

5 Katharine Adeney, “A Step Towards Inclusive Federalism in Pakistan? The Politics of the 18^th Amendment”, Publius: The Journal of Federalism, pp. 1–27, 2012, p, 9.

6 Ibid.

7 Pasha G.AishaHafeez,” Financial Implications of Devolution in Pakistan”, in Making Federation at Work, ed. Asma Faiz, (Oxford University Press, 2015), p. 144.

8 P.93.

9 Adeney Katharine, Federalism and Ethnic Conflict Regulation in India and Pakistan (Palgrave MacMillan, 2007), pp. 94–95.

10 Ibid., p. 93.

11 Ibid., p. 95.

12 Akhtar Majeed,” Republic of India” KINCAID, JOHN, and G. ALAN TARR, editors. “Table of Contents.” Constitutional Origins, Structure, and Change in Federal Countries, McGill-Queen’s University Press, 2005 p.182.

13 Ibid., p. 99.

14 Ibid., p. 99.

15 Ibid., p. 56.

16 Akhter Majeed, Republic of India, p. 1.

17 Ibid.,.

18 A.V. Dicey, Introduction to The Study of Law of Constitution (Liberty Classics, 1915), p. 77.

19 Ibid., p. 79.

20 Ibid.

21 Granville Austin, The Indian Constitution Cornerstone of a Nation (Oxford University Press,1966), p. 255.

22 ibid.

23 Akhtar Majeed, p. 192.

24 Ibid.

25 Watt, Comparing Federal Systems in the 1990s, p. 84.

26 Akhtar Majeed, p. 181.

27 Louis Tillin, Indian Federalism (Oxford University Press, 2019), p. 20.

28 ibid.

29 Ibid.

30 Dicey, Introduction to The Study of Law of Constitution, p. 87.

31 Ibid., p. 88.

32 Ibid.