The federal spirit that unites India

(NOTE: The article was published in the INDIA TODAY edition dated August 20, 2007)

There was great political upheaval when the Constituent Assembly met 60 years ago to draft a written Constitution for India. The trauma of Partition and the carnage it brought in its wake set the tone for the deliberations: the overriding concern was for the “integrity of India”: which came to be expressed in the final draft Constitution (up front, in the Preamble). Consensus was easily achieved in the provision for a common citizenship, but as to what should be the common language, there was much disputation. With more than 30 Indian languages competing for recognition, the Constituent Assembly ultimately agreed to Hindi and English as the two official languages of the Union, symbolic of One India. Then, a provision for an independent judicial body (the Supreme Court) as the sole arbiter and interpreter in the scheme of distribution of powers between the Centre and the states—a standard feature in every federal Constitution—was adopted. Next, the Chapter on Fundamental Rights (Part-III) drawn from the Standard Setting Charter of the United Nations ensured to every citizen the right to move freely in any part of India (Article 19(1)(d)) and trade, commerce and intercourse throughout India was declared to be “absolutely free” (Article 301). Finally, to keep the Union from falling apart, the Centre retained with itself, during emergent situations, all residual functions of the Government of a state (Article 356). These were some of the broad features of a new kind of “federalism”, specially designed to meet India’s new needs: the primary one being to preserve unity amidst vast and complex diversity. But federalism has not worked in practice: principally because of the Supreme Court’s fear of a Balkanised, fragmented India. A few examples:

First. Whilst Article 1 of the Constitution did proclaim the federal character of India—“India, that is Bharat, shall be a Union of states”— Article 3 empowered Parliament to diminish the area of any state, alter its boundaries, and change its name: this could be achieved (the Supreme Court had said in 1960) despite the opposition of the state and of its inhabitants. If Parliament, by ordinary law, could abolish a state: could the Union of states ever be described as “federal”? The framers wisely refrained from using this word. The courts also skirted the issue of giving a label to our framework of governance—one of India’s chief justices called it neither unitary nor federal, but “amphibian”.

Second. Whilst there is a clear-cut distribution of legislative and executive powers between the Union and the units comprised in it, the powers of the states have been constrained. States in India (unlike those in the US) have no independent “political sovereignty”: a conclusion affirmed way back in 1963 by a majority of Justices of the Supreme Court in state of West Bengal versus Union of India. The great question in that case was whether the Union had constitutional power to acquire properties belonging to a state or whether its power of acquisition was restricted to properties only of non-state entities within a state. Chief Justice Sinha said: “It would be difficult to hold that Parliament, which is competent to destroy a state, is on account of some assumption as to sovereignty of the state, incompetent effectively to acquire by legislation the property owned by the state for governmental purposes.” Justice Subba Rao dissented. He said that our Constitution adopted a federal structure with a strong bias towards the Centre, and that “under such a structure, while the Centre remains strong to prevent the development of fissiparous tendencies, the states are made practically autonomous in ordinary times within the spheres allotted to them.” But Rao’s dissent was a voice in the judicial wilderness.

Third. Even in “ordinary times”, the Centre has exercised control over states and their chief ministers. In May 1977, the Central government appointed a commission of inquiry (under the Commission of Inquiry Act, 1952) against the chief minister of Karnataka because of a series of serious charges made against him by some opposition members in the legislative assembly. The state of Karnataka promptly moved the Supreme Court, the only court having exclusive jurisdiction in suits between a state and the Union. It was contended that in the elections held in the state in 1972, the Congress had returned to power by a majority, electing Devraj Urs as its leader, who then formed the government; and that this government continued to enjoy the confidence of the state legislature; that in the Lok Sabha elections of March 1977, the Congress in Karnataka headed by the same Urs had secured 26 out of the 28 Parliamentary seats in the state; and that the Janata Party, which was in power at the Centre had been effectively rejected by the electorate in Karnataka. In these circumstances it was submitted that the appointment by the Central government of a commission of inquiry against the chief minister was only to discredit the ruling party in Karnataka. Not impressed with this plea, a bench of seven Supreme Court judges dismissed Karnataka’s suit by a majority (6:1). Their view was that there was a continuing need for Central supervision into state affairs. Justice Kailasam J. dissented. He held that the Union government had no jurisdiction or authority to constitute a commission of inquiry to examine the alleged misconduct of a chief minister. He said that “taking into account the history of the development of the Indian Constitution and its scheme, the Central government notification impinged on the right of the state to function in its limited sphere”. But he was in a minority of one; his too was a voice in the judicial wilderness.

Fourth. There has been frequent use (some would say misuse) of a constitutional provision, deliberately included to safeguard the “integrity” of the nation, namely, Article 356. The chief executive authority of the state is the governor, who is also the head of the state legislature. But he owes his appointment solely to the Centre, and holds office during the pleasure of the President, a constitutional euphemism for the prime minister’s pleasure. The governor has to constitutionally act in accordance with the advice given to him by the state’s council of ministers, but he is also the Union’s ‘eyes-and-ears’, its representative to determine whenever the government of the state “cannot be carried on in accordance with the provisions of the Constitution” and to so report to the President. On receipt of such a report, the President (i.e. the Central government) can assume to himself all the functions of the government of the state and declare that all the legislative powers of the state would be exercisable by and under the authority of Parliament. Article 356 was intended only as a residual provision to preserve the unity of India; it was meant to be used in times of grave constitutional crises. But it was the first invocation of Article 356 that created a precedent—some would say an unhealthy one. It was way back in 1951. Jawaharlal Nehru (then prime minister) put pressure on the Congress Parliamentary Board and compelled Chief Minister Gopichand Bhargava, who enjoyed majority support in the East Punjab Legislature, to resign. Rajaji, then home minister, informed the President that “after Bhargava resigns, no new ministry will be constituted in the state and then the governor will submit a report that it is not possible to run the administration under the Constitution and the President would then have to take over the administration”. This is how it has been done since then, not once, but more than 95 times. The Supreme Court’s recent decision in the Bihar Assembly Dissolution Case (2006) has perhaps checked this trend, but the verdict against the dissolution was just 3:2.

Fifth. After having authoritatively held in a Constitution bench decision in Shamsher Singh (1974) that the governor must always act in accordance with the advice of his council of ministers, the highest court has backtracked on this ruling; It has permitted the governor of a state to act on his own as the state’s “moral custodian” against an elected chief minister, as in Antulay’s case (1982). A later judgement of a Constitution bench of the court has endorsed this view. In 2004, the court upheld Governor Bhai Mahavir’s unilateral grant of sanction for the prosecution of the then chief minister of Madhya Pradesh. To counter the canker of corruption, the contours of governors’ powers have been enlarged by judicial innovation. But Rashtrapati Bhavan has not countenanced this approach regarding the powers of the President. One of the last orders passed by President Venkataraman before he demitted office in July 1992, was on a petition which prayed for sanction of the President for prosecuting the then minister for human resources development under Section 19 of the Prevention of Corruption Act, 1988. He rejected it saying: “The President is not the competent authority to remove a minister of the Union government (without the advice of the prime minister)”. If the President on his own could not constitutionally sanction the prosecution of a Union minister, could a governor on his own sanction the prosecution of a chief minister? This is still a grey area in the law, and its resolution must await a more definitive pronouncement by the highest court.

It is submitted that the Centrist slant in Union-state decision-making has been inspired not by the plain language of the constitutional provisions, but by an overriding concern for preserving the unity of India—at any cost, even at the cost of a truly federal India. No chronicler of the Supreme Court’s decisions on Centre-state disputes can fail to notice that it has not decided a single major issue directly arising between the Centre and a state in favour of the state. Even where the claims have arisen indirectly, the occasions when power to the Centre has been denied vis- -vis the states have been few. It would be unfair to regard this as a criticism, it is not meant to be. The stark fact is that the Justices who have sat in the highest court have believed that India needs a “strong Centre”. This belief has been reflected in all its decisions since 1950.

What about the future? In S.R. Bommai (1994), a bench of nine judges of the Supreme Court held that secularism was a basic feature of the Constitution. But the majority then went on to say that federalism too was a basic feature. In this, I believe, the Court went too far. It means that there could be no amendment in the existing Articles of the Constitution to disturb the type of federalism originally fashioned by the founding fathers: which takes one back to the now-discredited American constitutional doctrine of ‘Original Intent.’ Professor Wheare, a noted constitutional expert, has described the Constitution of India as “a Unitary Constitution with federal features”. To have characterised a concept so deliberately left undefined and amorphous, and label it a “basic feature” was to stultify constitutional development: Constitution-making is not a one-time exercise; it is a continuous process, it keeps getting constantly enriched by the experience of the nation.

Financial dependency on the Centre has so far been one of the main disincentives to the working of a true federalism in India. But this is fast changing. Growing investment opportunities from abroad and the tapping of global markets are not to the advantage of the Union alone. States find that they too can directly embark on joint ventures with multinational foreign corporations and find a new and much-needed resource for raising of funds on their own. Greater financial independence will necessarily herald less political dependence. And this will in turn get reflected, albeit slowly, in views of state representatives in Parliament.

In a recent book on American law, Professor Lawrence Friedman records that in the United States, there is nostalgia for an “older” federalism, a federalism tilted more strongly towards the states: what he calls the “New Federalism”. I share this sentiment. As I see it, the progress of constitutionalism in this great country is in a “New Federalism”—more equal rights (financial and political) for the states than in the past. This is not how our Supreme Court has so far seen it, not even after five decades. It is time it did. The Union is now firmly cemented.

The prime need of the hour is new judicial thinking on the subject of Indian federalism. The concept of a strong and united India is praiseworthy, but somehow lacks credibility, when for more than 10 years now, governments at the Centre have not been strong but weak, minority governments formed by uneasy coalitions of diverse political parties professing disparate policies. The Union of a “strong Centre” and “weak” states conceived by the founding fathers has not worked. We must realise now in this 60th year of Independence that it is only strong, self-reliant states that will make a strong and united India. Rao’s emotional appeal to the “brooding spirit” of the future may yet strike a responsive chord. Perhaps in our lifetime, and if not, at least in the lifetimes of our children. I believe that India—the India of our Constitution, the India of our dreams—will some day become, in the evocative words of Article 1 of the Constitution, a real Union of states; not remaining a mere Union of territories that are called ‘states’.

(The article was published in the INDIA TODAY edition dated August 20, 2007)

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