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Retreat from Federalism

Retreat from Federalism
PM Modi with his council of ministers after the swearing-in ceremony on May 30/Photo: UNI
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Above: PM Modi with his council of ministers after the swearing-in ceremony on May 30/Photo: UNI 

The concept of democratic federalism, introduced by our Founding Fathers, is under threat. It has been replaced by regressive federalism and a strong assertion of a unitary and unified theocracy

By Prof G Mohan Gopal

Guru MS Golwalkar, leading ideologue and former head of the RSS, writes at length in his book, Bunch of Thoughts, about why the federal structure established by the Constitution is a mistake and why a unitary state is needed in India: “Then came our present Constitution converting our country into a number of almost distinct units each with a ‘state’ of its own and all ‘federated’ into one ‘Union’. When one pauses to think of the conditions in which makers of this Constitution lived when they framed this Constitution one sees that the atmosphere then was extremely congenial to the formation and evolution of a Unitary State—One Country, One Legislature, One Executive Centre running the administration throughout the country—an expression of one homogeneous solid nation in Bharat or what remained of it then. But mind and reason of the leaders were conditioned by the obsession of ‘federation of states’ where each linguistic group enjoyed a ‘wide autonomy’ as ‘one people’ with its own separate language and culture…. The remedy lies in rooting out all tendencies towards separatism, all sentiments denying the firm faith in the oneness of the motherland and shaking free form all words and actions calculated to produce ideas contrary to the realisation of the oneness of our national life…. Towards this end the most important and effective step will be to bury deep for good all talk of a federal structure of our country’s Constitution, to sweep away the existence of all ‘autonomous’ or semi-autonomous ‘states’ within the one State viz., Bharat and proclaim ‘One Country, One State, One Legislature, One Executive’ with no trace of fragmentational, regional, sectarian, linguistic or other types of pride being given a scope for playing havoc with our integrated harmony. Let the Constitution be
re-examined and re-drafted, so as to establish this Unitary form of Government.”

Golwalkar also rejects the building blocks of democratic federalism—democracy, equality and freedom—and argues in favour of monarchy: “[A]ny arrangement that tries to remove the inherent disparities altogether on the basis of superficial equality is bound to fail. Democracy, even at this advance stage in the Western countries, is after all, the rule by a few who are well versed in the art of politics and capable of winning the masses to their line. The concept of Democracy as being ‘by the people’ and ‘of the people’, meaning that all are equal shares in the political administration, is, to a very large extent, only a myth in practice. Even to this day, democratic countries are plagued by grave social problems arising out of this basic confusion of placing system above man. The system of Democracy that they have evolved breeds two evils – self-praise and vilification of others – which poison the peace and tranquility of the human mind and disrupt the mutual harmony of individuals in society. In the present set-up both these are to be freely indulged in during elections. ‘We find that the monarchy, which bred such tyranny and gave rise to bloody revolutions in the West, was found to be a highly beneficial institution continuing for thousands of years showering peace and prosperity on the whole of our people, with the spirit of freedom alive in every sphere of life.”

Based on these deeply held and publicly stated ideological convictions against federalism and democracy, it is hardly surprising that the RSS-trained BJP-led government has moved aggressively against federalism in the last five years and sought to move India towards a centralised, unitary polity.

We have seen strong unilateral central intervention through demonetisation and GST to accelerate economic reforms and formalisation of the economy to facilitate integration with the global economy.

The main attack against federalism has come in the political and administrative domains. There has been a concerted effort to weaken political opposition using administrative and political measures. Unfriendly state governments have been the main target. There has been an attack on civil society, which has weakened democracy, federalism, diversity and plurality. Political and social discourse in the country has been censored and centralised. Through concerted, centrally coordinated action using legal instruments as well as social media and direct street action, conten­tious topics of conversation have been virtually expunged (such as secularism, majoritarianism, minority rights, human rights, freedom of speech and expression, casteism and caste discrimination, workers’ rights and patriarchy). Central and state governments of the ruling party have cracked down on academic discourse. Criticism of State action now comes at a considerable personal risk.

In contrast with political and social centralisation and homogenisation, there have been economic and developmental federalisation, decentralisation, deregulation and liberalisation. In the name of cooperative and competitive federalism, we have seen strong scaling down of the Union’s role in equitable social transformation. This was seen in the closing down of the Planning Commission as well as in the shutdown of targeted Union funding for centrally-sponsored schemes that leveraged important initiatives for democratisation of our social order. We have also seen a scaling back of central regulations of already inadequately regulated private business in the name of federalism.

It is not surprising at all that federalism gets the goat of conservatives. Federalism is a radical idea. It is to politics what atheism is to religion. If atheism is the removal of the idea of God—a supreme being—from the religious pantheon, federalism is the abolition of a sup­reme entity from the polity.

Federalism is the splitting and sharing of sovereignty among political entities, leaving no unit with supreme authority. It is more than mere decentralisation, deconcentration or devolution of power. It is the abnegation of unitary sovereignty—a rejection of the idea that for social stability, unity and cohesion, there needs to be a supreme political power with overarching power over everything.

Federalism need not necessarily be democratic. When coupled with democratic values—such as in our Constitution—federalism is a guarantor of freedom, equality, minority rights and democracy. It is a prophylactic against abuse of power and authoritarianism. It creates democratic checks and balances and checks anti-democratic contagion.

There are dangers, especially in fragile nations whose unity is built on the self-interest of oligarchs. Federalism can unshackle and unleash centripetal and centrifugal forces. Federations can disintegrate through secession or revert to a unitary state through centralisation.

Our Founding Fathers were bold in introducing democratic federalism into our nascent republic. The Constituent Assembly began with a strong concept of federalism, including vesting residual power in the states. The Partition of India, while the Constituent Assembly was in the midst of its work, ignited paranoia about the likelihood of further disintegration of India. This prompted a tilt towards a strong Union and an emphasis on the unity and integrity of the nation. Residual power was flipped from the states (as originally intended) to the Union. Additional powers were vested in the Union. The result was a polity that the Supreme Court confusingly termed “quasi federal”.

Our Constitution splits sovereignty between the Union and the states. Neither has overarching power over the other. Legislative, executive and judicial powers are reserved by the Constitution to the Union and to the states. While the Union can make, modify and unmake individual states, it cannot abolish them or their exclusive powers entirely—India cannot be a Republic without states. Therefore the Indian Republic is a federal polity, although of a weak rather than a strong variety, that started out as what some scholars would call a “coming together” confederation of a large number of relatively weak entities. However, it ended up as a “holding together” unifying federation in which the Union provides a strong centripetal force to counter any centrifugal tendencies that may release constituent parts from the orbit of the nation.

The Congress does not come to federalism with clean hands. While professing great love and firm ideological commitment to federalism, the party has had a promiscuous relationship with it. The Congress has not hesitated to undermine federalism by frequently dismissing elected governments to meet short-term political ends. This started with the dismissal of the communist government of Kerala as early as 1956. The declaration of Emergency in 1975 was perhaps the most serious crisis faced by federalism in the history of the Republic. It eventually led to a backlash in the form of strengthening regional political movements. The Congress considerably expanded the reach and scope of the Union’s executive power. Yet, it did not vest shared sovereignty in local governments under the 73rd and 74th amendments. The 1991 economic reforms under the PV Narasimha Rao government saw the Congress shift India from the path of socialism to a market model with permanent long-term consequences for states without giving them equal voice in making that change.

Overall, Union governments that have enjoyed single-party majorities have pushed back against federalism. Minority and coalition governments, especially those dominated by state leaders, have been more supportive of federalism.

The Judiciary has had an ambiguous relationship with federalism. On the one hand, our courts have affirmed and protected judgments (the Bommai judgment, as well as the 2016 judgments on Arunachal and Uttarakhand,  are notable examples). On the other hand, internally, the Judiciary has interpreted the Constitution to centralise appointments and transfer of High Court judges through the Collegium process. There have been efforts to also centralise all or part of the selection of subordinate court judges, including by the establishment of an all-India judicial service.

Going forward, important challenges to the federal structure are likely to emanate from proposals in the BJP’s 2019 manifesto. These include  simultaneous elections for Parliament, state assemblies and local bodies; a single, centrally controlled common national voter list (rather than state lists that are shared nationally); the “free hand” promised to security forces in combating terrorism and strengthening central armed police forces notwithstanding state primacy over law and order; the strong-handed enforcement of sedition laws across the country (former home minister Rajnath Singh has promised that sedition law enforcement will “send shivers down the spine” of people) and the abolition of Article 370 and Article 35-A.

What we are witnessing is not simply a retreat from federalism but the emergence of regressive federalism—a simultaneous retreat from state sovereignty as an instrument of democratic social change and an expansion of state sovereignty to suppress democratic freedoms and struggles.

This regressive federalism and the strong assertion of centralisation seems to be intended to undermine the constitutional idea of India as a modern, democratic republic and replace it with a unitary and unified theocracy. Three hundred and seven years after the death of its last great emperor, Aurangzeb, it seems that a true heir to the Mughal vision of the State—as a “centralized, sovereign, unitary State governed by one elaborate, highly unified and systematic bureaucracy under the exclusive control of the Sovereign”—has come to power in India in 2014 (C. Sreenivasa Reddy’s 1991 Social Scientist review of Doughlas Streusand’s  book, The Formation of the Mughal Empire, attributes this view of the Mughal approach to the State to Aligarh historians).

We may, therefore, expect an even more intensified challenge to the democratic and federal character of the Cons­ti­tution in the months ahead. We will see efforts to push the country towards a unitary character. The question is, will our Republic survive this challenge from ancient ideas that we mistakenly believed had been left behind in the dustbin of history?

—The writer is former Director, National Judicial Academy, and former VC, National Law School of India, Bangalore

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