A missed chance to strengthen Indian federalism

The Constitution is not always clear on the balance of power between the Centre and states. The Supreme Court’s J&K ruling stopped short of clarifying it
Image used for illustrative purposes only. (Express illustration | Sourav Roy)
Image used for illustrative purposes only. (Express illustration | Sourav Roy)

Indian federalism is unique. The Constitution does not use the word federalism anywhere. However, it prescribes a federal scheme of governance almost throughout. It tries to strike a balance between the Union and the states. It contemplates the division of powers and responsibilities between the Union and the states. Unlike in the US, Indian federalism was not spontaneous. We have been “holding together” the states that were not “coming together”, as it is often said.

Federalism addresses various concerns such as national security, people’s welfare, preservation of identity and diversity of communities, and administrative efficiency, among other things. India became a Union according to B R Ambedkar’s prescription. In certain areas, unitary features do overshadow the Constitution’s federal features. For example, parliament has the power to alter the very scheme of the Constitution. Provisions such as Article 352 on proclaiming Emergency and Article 356 on proclaiming president’s rule in the states empower the Union to act over the states. There is no reciprocal power for the states in such contingencies. In the realms of administration, the Centre can appoint governors as the titular heads of states. We also have a fiscal scheme where the Union often enjoys superiority over the states. Thus, Indian federalism is said to possess strong centralist traits.

Because of this centralist character, conscious efforts should be made to maintain the balance of powers and cordiality in Centre-state relation. The Centre should itself be cautious about the perils of centralisation. A situation of the powerful Union taking a hostile attitude to opposition-ruled states should be avoided, as it might create dissatisfaction and a feeling of dismemberment among the people.

The legitimate rights and interests of states should be honoured by recognising their constitutional significance. Justice Jeevan Reddy, in S R Bommai vs Union of India (1994) wrote, “The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the states does not mean that the states are mere appendages of the Centre.” He added that “within the sphere allotted to them, states are supreme” and that “the Centre cannot tamper with their powers”.

This is the reason why, in our system, state elections are as important as parliamentary ones. Every election is an opportunity to foster plurality, diversity and thereby the spirit of federalism. After referring to Justice Reddy’s remarks in Bommai, Chief Justice D Y Chandrachud recently wrote while heading another Constitution bench that the priorities of the central and state governments “are not just bound to be different, but are intended to be different” (Delhi government vs Union of India, 2023). The Supreme Court also rejected the argument that the Constitution is unitary. Thus, the idea of collaborative federalism was juridically reiterated.

Many of the recent developments unfortunately do not reflect such a constitutional spirit on the part of the Centre or its representatives while “dealing with” the states. The gubernatorial excess at certain opposition-ruled states is deplorable. The situation in states siuch as Punjab, Tamil Nadu and Kerala illustrates this point. The governors themselves often become an obstacle to governance. Despite the Sarkaria and Punchhi commissions’ recommendations that the Raj Bhavans should facilitate cordial Centre-state relations, one finds several governments moving the Supreme Court to get assent for bills that their state assemblies have passed based on the people’s mandate. The blatant abuse of gubernatorial power has almost become a new normal.

There are also other instances indicating the emergence of an aggrandizing Centre. The Kerala government had to approach the Supreme Court to seek central financial allocations that it is eligible for. Getting due shares of the goods and services tax and other central funds is

another issue highlighted by some opposition-ruled states.

The Centre also uses its police power over dissidents at the state level. The Enforcement Directorate and the Central Bureau of Investigation are used in a selective manner in some (read opposition-ruled) states. Selective use of the law demolishes the Rule of Law which, in the Indian context, is also a dominant threat to the nation’s federal character.

When opposition members from certain states were suspended after they asked questions about the recent security breach, it gave an impression that even legitimate criticism is thrashed by the sheer majoritarianism of the current regime. The division among the people in states such as Manipur is also a testimony to the Centre’s selective apathy. Such instances have caused genuine apprehensions about the future of federalism in India.

It is in this context that the Supreme Court’s verdict on the abrogation of Article 370 was delivered. Many were worried what the Centre would do in the future with states which do not share the Centre’s political ideology and method of governance. The court’s verdict has its pros and cons. It reaffirmed the sovereignty of India, confirming the nation’s integrity. It also fixed a time frame for conducting elections in Jammu and Kashmir. These directives are commendable.

But sadly, the court did not fix a time limit for restoring J&K’s statehood. Conversion of a state into a Union territory is not contemplated by the Constitution. Article 2 only concerns itself about “admission or establishment of new states”. Article 3 is about the “formation of new states and alteration of areas, boundaries or names of existing states”. Conversion of J&K into a Union territory by the Centre was apparently against the constitutional scheme. When this was challenged in court, the Centre cleverly conceded that it will restore J&K’s statehood “as soon as possible”.

Despite clarity in the constitutional scheme, the court did not lay down the law and only recorded the Centre’s assurance. By not fixing a time limit and not affirming the law on the point, the court has committed a serious omission. A major criticism against the verdict is that it did not address the federalist concerns. If the court had also directed that statehood should be restored before the election to be held by September 30, 2024, the message would have been loud and clear. It would have been a moral boost for the cause of Indian federalism, which unfortunately didn’t happen.

Kaleeswaram Raj

Lawyer, Supreme Court

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