Federal features

Published June 12, 2021
The writer is an author and a lawyer based in Mumbai.
The writer is an author and a lawyer based in Mumbai.

ONE of the main architects of India’s constitution, Dr B.R. Ambedkar was always at pains to assert that the constitution over which he had toiled was essentially federal in nature. Moving that the draft constitution be taken into consideration, on Nov 4, 1948, he said: “The draft constitution is a federal constitution inasmuch as it establishes what may be called a dual polity. This dual polity under the proposed constitution will consist of the union at the centre and the states at the periphery each endowed with sovereign powers to be exercised in the field assigned to them respectively by the constitution.”

These dicta are advisedly quoted at length to demonstrate how a constitution can be deformed and perverted despite the intentions of its framers. Some perversions began early when Jawaharlal Nehru was prime minister. Dr Ambedkar was almost in tears a few years later when he told the Rajya Sabha that he was a hack and disowned the constitution.

In this he was being utterly unfair to himself and, indeed, to the text of the constitution. A British scholar on constitutional law opined early enough that India’s was a unitary constitution with federal features rather than a federal constitution with unitary features.

Right now, under Prime Minister Narendra Modi, assaults on the few federal features have increased. Truth to tell, the Hindutva parties, the Jan Sangh and its successor, the BJP, were never happy with federalism. For at the core of the concept of federalism is sharing of power.

Debate in India reckons with the union’s amassment of power but not with the refreshingly new insights into the concept of ‘cooperative federalism’. This implies that all the three tiers of the country’s government — union, provincial or state and municipal — cooperate in the national undertaking; each sticking to its own sphere delineated in the constitution. States which resent central dominance cheerfully tread on the domain of the municipalities and local boards, the law regardless. As Jyoti Basu, chief minister of West Bengal discovered, memoranda demanding greater powers for states are one thing. But it is the union which controls the flows of funds to the states.

At the core of the concept of federalism is sharing of power.

The concept of cooperative federalism implies obligation by all to cooperate in the nation-building exercise. As explained previously, “Rather than pitting state’s rights against central power, the trend in the US, Canada, Australia and Europe has been towards sharing and cooperation in services and planning. While the federal governments without a doubt have increased their power at the expense of the state level, the state governments have also gained new functions”. And “states and local agencies, in particular, have developed ways of participating in the planning and administration of many of the federal activities which at first glance appear to intervene so drastically in their internal affairs”.

In Australia, for instance, since 1982, states are to be consulted in advance before the Commonwealth of Australia concludes a treaty with a foreign government which impinges on their interests, although under the constitution foreign affairs is exclusively a union subject.

In Canada, the provinces successfully united to secure greater powers without amending the constitution. It is politics which shapes the working of a Constitution. The All-India Services are another tool of central control. Deputation of an officer belonging to this service is controlled by the centre. Recently, the Modi government sought to punish the chief secretary of West Bengal for being late, by five minutes for a meeting with Prime Minister Modi. Kashmir has bitterly complained of central control over the so-called All-India Services. They include the Indian Police Service also.

It is, however, in the intellectual realm that the backwardness is more harmful. There exists an international body charged with the study of federalism. The progress which its journals record are unknown in India. We need to think anew. A federal constitution cannot be worked by political parties organised as unitary bodies.

All the political parties are run by their party bosses at the very centre. They award tickets for election to party candidates whom they select. The party members have no voice in the selection. It is the boss who will decide who will be the chief minister and even the composition of the cabinet. In short, a so-called democratic constitution is run by outrageously undemocratic political parties. This is the direct opposite of the situation in Britain, Germany, the US and other democratic countries. This has an impact on the working of the constitution, especially on the functioning of the governor and the president.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, June 12th, 2021

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