Monday, October 28, 2013

A challenge to Indian federalism

The efforts of the Union government to divide Andhra Pradesh irrespective of the State legislature’s views, pose a grave danger to federalism and unity.

The decision to divide Andhra Pradesh raises important questions about federalism and the nation’s future. This is the first time in India that a state is sought to be divided without the consent of the State legislature, and without a negotiated settlement among stakeholders and regions, and in the face of public opposition.

All major federal democracies have in their Constitutions the provision that a state cannot be divided or merged with another state without its prior consent. This is the essence of federalism.

Article 3

India’s Constitution-makers gave much thought to the issue of formation of new states and reorganisation of states. The Drafting Committee and the Constituent Assembly were aware of the circumstances prevailing at that time. India witnessed Partition, accompanied by violence, bloodshed, and forced mass migration. In addition, there were several kinds of States — Parts A, B and C — and there was need to reorganise all states and integrate the 552 princely states. If the consent of every State or Unit was a precondition to altering the boundary, reorganisation would have become an excruciatingly difficult exercise. Consequently, the final text of Article 3 as promulgated provided for the President’s recommendation and ascertaining the views of the state concerned both with respect to the proposal to introduce the Bill and with respect to the provisions thereof.

Our nation-builders were wise in drafting the Constitution to suit our requirements. More important, successive governments have wisely applied Article 3 in dealing with states. While prior consent of the state was not necessary under the Constitution, in practice every state has been formed with prior consent, in most cases after a detailed, impartial examination by an independent commission. Only in the case of Punjab, there was no legislature at the time of dividing the State in 1966. But there was a broad consensus among stakeholders and no opposition.

So far, Parliament and governments have acted with restraint and wisdom in dealing with boundary issues and formation of states. They rejected the notion that anything could be done to alter boundaries, provided it is not expressly prohibited by the Constitution. While prior consent of the state legislature is not mandatory, in practice care has been taken to obtain consent, or to act only on the express request of the state. The 1956 reorganisation was based on the fundamental principle of language; there was broad national consensus on the issue.

Articles 3 & 4 in their present form are enabling provisions empowering Parliament to act in an exceptional situation when national interest warrants it, or to settle marginal boundary disputes between states when they are recalcitrant and efforts to reconcile differences and arrive at a settlement fail. The framers of the Constitution did not intend to give Parliament arbitrary powers to redraw boundaries; nor did successive Parliaments and governments act unilaterally or arbitrarily without consent, broad consensus or negotiated settlement.

Even after 1987, in every case of state formation, the consent of the state legislature was obtained. The broader principle of federalism and the willing consent of constituent units and their people has been deemed to be necessary before a state is formed or a territory merged, unless overwhelming national interest demands action by Parliament. The procedure was observed in creating Jharkhand, Uttaranchal and Chhattisgarh in 2000.

Dr. Ambedkar said in his reply to the debate in the Constituent Assembly on states’ rights: “The… charge is that the Centre has been given the power to override the States. This charge must be admitted. But before condemning the Constitution for containing such overriding powers, certain considerations must be borne in mind. The first is that these overriding powers do not form the normal feature of the Constitution. Their use and operation are expressly confined to emergencies only”.

It is this spirit that informed the actions of the Union government and Parliament over the past six decades. There were blemishes in the application of Article 356 earlier. But over the past two decades Indian federalism has matured a great deal. The Supreme Court, in Bommai (1994), made Article 356 more or less a “dead letter” — as Dr. Ambedkar had hoped. Though the Finance Commission’s recommendations are not binding on Parliament and government, those of every Finance Commission in respect of devolution of resources have been accepted and implemented. Since the report of the Tenth Finance Commission, there has been greater transparency in devolution: most of the tax revenues of the Union are being treated as the divisible pool, and a fixed proportion of it is shared with states as decided by the Finance Commission. States are now more in control of their economic future.

Limited sovereignty

This does not mean states can act as they please, or that their territorial integrity is inviolable. There is one nation and one citizenship, and the nation’s territorial integrity is paramount. However, within that overarching framework, states exercise limited sovereignty, and the federal spirit informs the operation of the Constitution. The Constitution did not intend to make India a unitary country with states functioning as municipalities, their survival dependent on the will and whim of the Union government. Nor did the operation of our Constitution over the past 63 years suggest a de facto unitary state. In fact, federalism has been deepening in India, in keeping with global trends.

The determined efforts of the Union government and its oft-repeated declarations that Andhra Pradesh will be divided irrespective of the legislature’s views, pose a grave danger to federalism and unity. Andhra Pradesh was formed with the prior consent of the Andhra State Legislature, and the Hyderabad State Legislature. When two popular movements for the state’s division were launched in the three regions — in Telangana in 1969-70, and in Coastal Andhra and Rayalaseema in 1972-73 — the Union government encouraged all regions to arrive at a negotiated settlement. Corresponding constitutional provisions were put in place to safeguard the interests of all regions. An explicit and implicit compact was made by the Union with the people of Andhra Pradesh to the effect that the State would remain united. It is on this basis that people migrated on a large scale to the other regions and to the capital, Hyderabad, and built their lives, livelihoods and the State’s economy. In this backdrop, any redrawing of boundaries would need another agreement arrived at by the affected parties through patient negotiation. The Union has a seminal role in helping reconcile conflicting interests harmoniously. Parliament can act only on the basis of such an agreement, consensus and consent. Any other approach would be ham-handed, arbitrary and uneven, and run counter to the principles and practice of federalism as they have evolved under Indian conditions.

The way the President and Parliament handle the Andhra Pradesh issue will, in a fundamental sense, shape the future of the Union itself. This is a defining moment not for Andhra Pradesh alone, but for our federal Constitution and India itself.

If such an arbitrary decision becomes a precedent, any and every state could be divided or boundaries altered without consent, and without a negotiated settlement, that will effectively convert states into municipalities, and India into a unitary state. Neither the Constitution-makers nor nation-builders intended such an outcome. And India’s future will be in peril if such an effort is made to make the nation effectively unitary at this stage.

In critical moments like this the President and Parliament have to act with restraint, foresight and wisdom. The President is not only the head of the Republic, he is also a part of Parliament. The President is elected by members of both Houses as well as members of State Assemblies. In a fundamental sense the President represents the nation — both Union and states — and is the final defender of the Constitution and federalism along with the Supreme Court. This is therefore a fit case where the President should exercise his constitutional duty independently before recommending introduction of any Bill to divide the State of Andhra Pradesh.

Leaders of parliamentary parties too should act with clarity and wisdom, and with the knowledge that division of a state without its consent and a negotiated settlement among all stake-holders converts the nation effectively into a unitary one. Every state will, in future, be vulnerable to unilateral action for short-term electoral expediency.

The Constitution, the President, Parliament and the political parties will be put to a severe test in this case, and the way they respond to this challenge will shape the future of our Republic, and the future of federalism in India.

by Jayaprakash Narayan

Courtesy: The Hindu

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