The following are the essentials of a federal government:-
(1) A precise distribution of powers between the centre and the states (units);
(2) The supremacy of the constitution;
(3) The supremacy of Judiciary;
(1) Distribution of powers between the Centre and the States:
There is a distribution of powers between the centre and the state governments, because a distribution of powers between the centre and constituent units is indispensable for its existence. Secondly, for administrative efficiency, the central government grants autonomy to provincial governments. Thus, the division of powers between the centre and the units is indispensable. Generally, the division of powers is made in such a way that matters of national importance are given to centre and matters of regional interest be given to provincial governments.
Foreign relations, defence, communications, currency and coinage, foreign trade, grant of citizenship to foreigners on completion of certain conditions, are given to the central government. Matters like supervision of local government, education, jails, police, co-operation, agriculture, health and sanitation, medical, etc., are left with the regional or state governments. There is no hard and fast rule for the division of subjects but in every federation the division takes place according to the circumstances of that country.
Regarding the division of powers, in some constitutions mention is made of the power of the centre and the rest of the powers are given to the units. In the constitutions of the Soviet Union, the United States of America, Switzerland and Australia, this method is adopted.
In the constitution of that country the mention of the powers of the units has been made and the rest of the powers have been given to the centre. In India, three lists have been made for the division of powers. They are the Union List the State List and the Concurrent List.
Union Parliament is empowered to make laws on the subjects of Union List, the state legislatures can make laws on the State List, but in certain special circumstance, the parliament can also legislate on the State List. On concurrent list, both the parliament and the state legislatures can make laws, but the state legislatures cannot make any law on Concurrent List which runs counter to the law passed by the Parliament.
In such circumstances, only the law passed by the Parliament shall be implemented and the law passed by the state legislatures shall be considered as null and void to the extent it goes against the law passed by the Parliament. Residuary powers have been given to the Centre in India.
(2) Supremacy of the Constitution:
The second essential feature of a federation is a written and rigid Constitution. In order to make a clear division of powers between the centre and the units, a written constitution is indispensable. The centre and the units have full faith in the constitution which is considered as the highest law of the land and any act violating the Constitution is declared illegal.
The constitution should be rigid so that the centre as well as the units may not amend it arbitrarily. A special procedure is adopted to amend the constitution. This procedure is very complicated. The reason is that the constitution is considered a sacred document and both the centre and the states (units) agree that there should be very few amendments so that the stability of the constitution is maintained. The process of the amendment of the constitution should make it binding that no amendment is to be given effect without the consent of both the Parliament and state legislatures.
(3) Supremacy of Judiciary:
There is a dual government in a federation. Though there is a clear mention of the powers of centre and the units in the Constitution, yet any dispute relating to the jurisdiction can arise in future. In the event of such disputes both the central and the state governments will interpret the constitution in their own way. Therefore, free and impartial judiciary should interpret the Constitution impartially in order to settle the dispute of jurisdiction etc.
Freedom of judiciary is essential so that the centre or the states may not have the decisions in their favour by exerting any sort of pressure on it. Only a free judiciary will be able to give decisions independently and will be in a position to win the confidence of both the centre and the state. Thus the stability of the federation depends upon the establishment of a free judiciary.
John Stuart Mill has emphasized the need of an impartial judicial tribunal in a federation in the following words:
“It is evidently necessary not only that the constitutional limits of authority of each (central and regional governments alike) should be precisely and clearly defined, but that the power to decide between them in any case of dispute should not reside in either of the governments or in any functionary subject to it but in empire independent of both. There must be Supreme Court of justice and a system of co-ordinate courts in every state of the Union before whom such questions shall be carried and state of the Union before whom such questions shall be carried and whose judgment on them in the last stage or appeal shall be final”.
In a federation, Supreme Court is established to decide constitutional disputes, to interpret the constitution and to guard it. In India and in the United States, Supreme Court performs these functions and its judgements are binding on both the centre and the states as final.
The position of the Federal Tribunal of Switzerland is quite different. In that country, the Federal Assembly interprets the Constitution. The Federal Tribunal cannot declare the laws passed by the Federal Assembly as illegal or ultra virus, even if they are against the constitution.
The Federal Tribunal can only declare ultra virus the laws of the legislatures of the Cantons (units of the Swiss federation), in case they violate the constitution. In Soviet Union also the Supreme Court has no right to interpret the constitution. This right is exercised by the Presidium of that country which is a permanent committee of the Supreme Soviet (Parliament) and in its absence performs many of its functions.