CONSTITUTIONAL law “is not at all a science, but applied politics, using the word in its noble sense.” This aphorism of Justice Felix Frankfurter of the US Supreme Court is particularly true of the federal structure which a constitution sets up.
A constitution only provides the bare skeleton of the polity. It is politics that provides the flesh and blood. The letter of the constitution might remain the same, but politics can deform it in its actual application or help it grow. Last week India realised the sagacity of Frankfurter’s words.
The Congress-led United Progressive Alliance (UPA) that runs the government at the centre was plunged into a deep crisis by the threatened resignation of two senior ministers belonging to Congress splinter group the Nationalist Congress Party (NCP), its leader Sharad Pawar and his colleague Praful Patel. Congress has the largest numbers in the Alliance but is far short of a majority. The NCP has a mere nine members in the Lok Sabha, the lower house of parliament, but it is an ally of the Congress in the state of Maharashtra as well, where Pawar has served as chief minister more than once.
The grievances he aired ostensibly made no sense. The six-day-old crisis ended with a joint statement on July 25 that said there had been an agreement “to set up an effective coordination mechanism very soon to ensure the cohesive functioning of the UPA” and “to ensure the UPA allies meet once a month to discuss policy and other issues.” A similar body will be set up in Maharashtra.
No one was taken in by this show of accord. Both the Congress and the NCP have been looking around for potential allies in preparation for the elections to the Lok Sabha and the Maharashtra Assembly due in 2014. That is true also of the other allies of the Congress in the UPA. Particularly troublesome is Mamata Banerjee, chief minister of West Bengal and founder of another Congress splinter group, the Trinamool Congress. So is the DMK in Tamil Nadu. Though no longer in power in the state, it periodically uses its sizeable presence in the UPA to send veiled threats.
The UPA’s policies have to reckon with the interests of its allies. Regional satraps wield continuing influence on the centre. Mamata Banerjee success-fully vetoed an agreement on river rights which the government of India had concluded with Bangladesh, while the DMK has a comparable influence on India’s policy towards Sri Lanka, which has just crushed a violent Tamil revolt.
The framers of India’s constitution never imagined that the states would become so assertive. They set up a highly centralised federation. It worked fine so long as Congress hegemony lasted. In 1967, it lost power in the states of the entire northern belt. Prime Minister Indira Gandhi welcomed a “more practicing federation with multiple parties and coalitions in power.” Five years later, however, she said, on Feb 3, 1972, that it was necessary that the state governments should be “in tune” with the government at the centre, accept its policies and be willing to implement its programmes.
Her conversion to a brazenly anti-federal approach was induced by her election victory in 1971, when she gained a massive majority in the Lok Sabha. There began an era of ‘ready-made chief ministers’ in the states, men she had appointed and the states’ Congress legislators obediently endorsed. This era continued right till 1989, including during the tenure of Prime Minister Rajiv Gandhi (1984-1989) since he commanded a huge majority in parliament.
There was a break from 1977-80 when an unsteady coalition of Congress opponents wielded power. The P.V. Narasimha Rao government of the Congress (1991-96) survived on defections. From 1996 to this day, India has been ruled by ramshackle coalitions, either with the BJP as the main partner (1996-2004) or the Congress from 2004 onwards. Both depended on regional allies who did not hesitate to call the shots whenever it pleased them.
During this entire phase the letter of the constitution had not changed. But radically altered politics changed the federation to a degree none had imagined before. This is likely to continue, for the era of a single party’s majority in the Lok Sabha seems to have ended. Coalitions which would include powerful regional parties will govern India.
The centre is paying for its past sins. The Congress had ridden roughshod over the states. Two instances will suffice. The framers of the constitution advisedly put industries in the state list. However, the entry relating to industries was made subject to two entries on the central list. One relates to industries declared by parliament by law to be necessary for the purpose of defence or for the prosecution of war. Another reads thus: “Industry, the control of which by the Union is declared by parliament by law to be expedient in the public interest.” Parliament soon enacted the Industries (Development and Regulations) Act, 1951. It specified as many as 38 industries for central control. These included items such as zip fasteners, razor blades, matchsticks, hurricane lanterns, cigarettes and toilet preparations.
The scheme of the constitution is perfectly clear. Industries are essentially a state subject. Only those industries are to be regulated by the centre, the control of which by the Union is declared as expedient in the public interest by parliament. Yet without an amendment to the constitution, industries were virtually made a Union subject.
‘Economic and social planning’ figures in the concurrent list. The centre interpreted this in the widest terms and effectively undermined planning by the states. The constitution establishes a Finance Commission as an umpire to divide revenues and recommend financial transfers to the states. But an extra-constitutional body, the Planning Commission, was set up through which huge discretionary grants are made by the Union to the states. It consists entirely of the appointees of the centre. The states’ feeling of dependence on the centre has been heightened. In the process, the authority and jurisdiction of the Finance Commission was undermined.
All over the world units of federations are clamouring for greater power, especially in Canada and Australia. It is a matter of time before the states in India unite to present a Magna Carta for the redressal of their long-felt grievances.
The writer is an author and lawyer based in Mumbai.