ALL federations make foreign affairs a central subject. But none render the states as dependent on the centre as India does. Chief ministers take its permission for travel abroad. As citizens, they do not need to, unless they plan to negotiate, whether for loans or investments.
India refused to accept offers of help from the UAE for the massive floods in Kerala. Many Keralans are settled in the UAE and contribute significantly to the state. On Aug 30, Chief Minister Pinarayi Vijayan told Kerala’s legislative assembly that the state government would explore the possibility of legal options to avail the funds offered to it, including those from abroad. There is and should be no legal impediment to Kerala’s acceptance of those funds, provided they are fully disclosed to the centre and to the nation.
A good example was set by the Indian Punjab assembly on Aug 27. It unanimously passed a resolution to press the central government to pursue the issue of opening the Kartarpur corridor to Sikh pilgrims with Pakistan. The resolution was moved by Chief Minister Amrinder Singh.
India acts as though there are no limits to federal powers.
All members of the house, cutting across party lines, were unanimously of the view that the opening of the corridor would enable millions of Indian devotees to pay obeisance at the historic gurdwara. The Sri Kartarpur Sahib Gurdwara, where Sri Guru Nanak Dev Ji spent the last years of his life, is located across the international border, though it is clearly visible from Dera Baba Nanak in Gurdaspur district. It would melt the ice on India-Pakistan relations.
In keeping with the Modi government’s policy of confrontation with Pakistan, it has calculatedly ignored Punjab’s wishes in the matter. To be sure, this is a matter that does touch on the centre’s field. But refusal owes not a little to the fact that Punjab has a Congress government. What right has the central government to override the state’s wishes in a matter which concerns its people so deeply? It is sheer abuse of power.
Let alone state legislatures, municipal bodies also have a right to express their views as their electors’ representatives on foreign affairs. No objection was taken when the Tamil Nadu Assembly voiced its opinions on the Tamils in Sri Lanka.
In June 1948, the Indian government offered the Nizam of Hyderabad a draft ‘heads of agreement’ on defence, foreign affairs and communications. They were reserved for the Indian government. Paragraph Seven added a qualification: “Hyderabad will, however, have freedom to establish trade agencies in order to build up commercial, fiscal and economic relations with other countries; in the closet cooperation with, the government of India. Hyderabad will not have any political relations with any country.” Do the states of the union of India deserve less in 2018?
It will not violate the federal principle one bit. On the contrary, it will fulfil it. Witness Australia. It has moved miles ahead. In May 1996, Foreign Minister Alexander Downer announced the government’s decision in a detailed statement to parliament to ginger up both processes: parliamentary scrutiny of treaties and consultation with the states.
Meanwhile, Jammu and Kashmir is a case apart. An assembly resolution expressing the people’s demand for azadi or condemning the forces’ excesses will hugely embarrass New Delhi at home and abroad. This explains why New Delhi manages J&K’s assembly elections. The time has come to review J&K’s autonomy in light of modern international conditions.
In July 1958, a resolution was moved in the Bombay Municipal Corporation expressing its “deep regret” about the execution of former Hungarian prime minister Imre Nagy, and its horror at the crime. The mayor rejected a point of order challenging the corporation’s power to discuss with a motion. A single judge allowed the writ petition challenging his ruling. On appeal, a division bench reversed his judgement in April 1959. It relied as a precedent on a judgement of the Sindh High Court before 1947.
In regard to J&K, the constitution of India itself limits the union’s power to settle the Kashmir question without the concurrence of the J&K government; which of course means one elected by a free and fair vote. The assembly must first vote on the issue, the government will act thereafter. Thus, the constitution itself regards the future of J&K as an open question. For the limit on Delhi’s power is uniquely confined in J&K’s case.
The 1954 presidential order applies Article 253 (related to treaty-making powers) to J&K with one overriding proviso: “Provided that after the commencement of the Constitution (Application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of [J&K] shall be made by the government of India without the consent of the government of [J&K].”
This means the assembly to which the government is responsible. The assembly debates and votes first; the government’s decision will be bound by that vote.
The writer is an author and a lawyer based in Mumbai.
Published in Dawn, October 20th, 2018