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Mainstream, VOL LIX No 3, New Delhi, January 2, 2021

Federalism As A Lynchpin Of Democracy Lesson From The U.S. Election | Vijay Kumar

Saturday 2 January 2021

by Vijay Kumar

One of the lessons from US Presidential election is that the robust federal principle of American Constitution has succeeded in rescuing the democracy from well orchestrated attempt to undermine it by paving the way for fascism with grave implications for democracy in other parts of the world. The system of securing majority in electoral college and its primacy over popular vote may sound odd and incongruous to outside observers, but the principle of federalism embodied in US Constitution mandated the equal say of even the smallest States in the election of its President. When challenged in the US Supreme Court by four Republican-controlled States through their Attorney Generals, the Supreme Court, packed with the republican appointee justices, rose to the occasion and tossed out the challenge unanimously by observing that the certification of election verdict issued by State Electoral Officer deserved deference rather than interference. It is the strong federal structure that acted as a solid guard railing of democracy.

The federalism contemplated in Indian Constitution is not as well- entrenched as federalism in countries like US, Canada and Australia. Yet, the principle of federalism is enshrined in the Constitution through distribution of legislative field between the Parliament and the State Legislature. Notwithstanding this clear demarcation of legislative entry, the federalism in Indian Constitution is marked by asymmetry reflected through the Concurrent List granting both Parliament and State Legislature to legislate on the subject enumerated therein with overriding power in favour of Parliamentary Enactment subject to the caveat that any State Legislation on the same subject enacted subsequently would be valid in that State, provided it receives the assent from the President. Apart from this, the other anomalies are the power of Central Government to dismiss the State Government by imposing President Rule and the unilateral power of the Central Government to alter the boundary of the State as envisaged under Article 356 and Article 3 of the Constitution respectively. Despite unitary bias, the salient features of federalism are present in Indian Constitution. No wonder, the Supreme Court of India has declared the federalism as basic feature of the Constitution, first in 1973 in historic Keshavananda Bharati judgment and subsequently in 1993 in landmark Bommai judgment. While interpreting the legislative competence of Parliament and the State Legislature under Seventh Schedule of the Constitution, the Supreme Court ruled in 2002 in ITC judgment that the Entry in Union List and State List must be interpreted in a manner as to subserve the principle of federalism.

Notwithstanding the constitutional position and its interpretation by the highest court of the land, the doctrine of federalism has, in practice, been always annihilated during the time of hegemony of the dominant party. The federalism suffered during the hegemony of Congress party, particularly during the Prime Ministership of Indira Gandhi.
Presently, we are living in the era of hegemony of BJP, and once again the federalism has come under tremendous strain, particularly in the second term of Prime Minister Modi after 2019 general election.

The enactment of GST as one Tax for one Nation introduced in the first term of Modi’s Prime Ministership was the first major step towards the dilution of federal principle. But the tendency to centralize power acquired sharp turn in the second term of Prime Minister Modi. The BJP Government under the leadership of Prime Minister Modi dismantled the structure of federalism by making Article 370 of the Constitution, which granted autonomy to J&K, dead letter by taking away special status and downgrading the State by dividing it and converting it into two Union Territories. The doing away with special status of J&K by suspending the operation of Article 370 is no doubt single greatest assault on federalism, but even thereafter the Government has showed neither sensitivity nor respect to the rights of States. The passing of three Farm Bills in September 2020 in tearing hurry by ramming it through the Parliament by voice votes despite the demand of actual vote by opposition members and dubious conduct of the Deputy Chairman of Rajya Sabha is obvious instance of emasculation of the principle of federalism. Since agriculture is State subject, the democratic sensitivity warranted that the BJP should have introduced the Agriculture Bill in States ruled by them, and there are more than dozen states where the BJP has its government. Even if central legislation was required, it should have been preceded by intense consultation with all the states and other stake holders. By ignoring the states, including numerous States ruled by it, Modi Government has subverted the very idea of federalism. Yamini Aiyar, President, Centre of Policy Research, has demonstrated in her research that all the welfare schemes are being branded in the name of Prime Minister and the State Governments are bypassed with disdain and hubris.

The ever-increasing centralizing tendency of Central Government and the promotion of cult image of Prime Minister Modi have given rise to curious phenomenon of cornering the central constitutional functionaries, such as the President and Vice President, and allowing the Governor in a State ruled by Opposition to become hyper-active. The pugnacious manner of daily combat between the Governor of West Bengal and the Chief Minister of the State is most glaring case and by no means unique. Far from remaining within the bound of constitutional propriety, the Governor of West Bengal is unleashing fusillade against the Chief Minister. Similarly, the request of the Chief Minister of Kerala for convening the special session of Assembly for discussion on Farm Bills has been rejected by the Governor of that State. Same was the fate for the demand of opposition to convene the special session to discuss the Farm Bill, particularly after the undemocratic decision of the Central Government to dispense the winter session of Parliament, resulted in rejection of request by brazenly arrogant act. In contrast to all these, P.M. Modi himself donned the robe of the Priest and conducted bhoomipujan of new Parliament Building by showing complete neglect of the two highest constitutional functionaries, i.e. the President and Vice President of India. The Parliament comprises of the President, Rajya Sabha and Lok Sabha vide Article 79 and the Vice President, second highest constitutional functionary of the country, is ex-officio Chairman of Rajya Sabha i.e. Upper House vide Article 64. It is unfathomable that the President of India as integral and inseparable part of trinity of the Parliament and the Vice President as ex-officio Chairman of Rajya Sabha could be bypassed on the occasion of laying down the foundation of new Parliament building. Thus, the relegating the two highest constitutional functionaries of the country to the backburner and allowing the highest ceremonial functionaries of the State, i.e. Governor in Opposition Ruled States to become overtly partisan has the potential of striking death knell of federalism.

The formation of State on the basis of linguistic criteria immediately after independence during the Prime Ministership of Nehru was high watermark for evolution of federalism. The federalism suffered during the era of Indira Gandhi. But the end of Congress hegemony in 1989 and the emergence of coalition era politics from 1989 to 2014 resulted in strengthening of federal structure. But the foundation of federalism started crumbling after the return of BJP in power with full majority in 2014 and emergence of Narendra Modi as Prime Minister and strong authoritarian leader. The federalism, according to Lord Action, is most important check on democracy. Atul Kohli, one of the foremost political scientists and interpretors of India’s development experience and professor in the Princeton University in his monumental work “democracy and discontent” theorized that the federalism strengthened democracy in India. The unity and integrity of the country can better be preserved by respecting its’ mind-boggling diversities and only through capacious federal structure. The attack on federalism, therefore, per se debilitates democracy.

(Vijay Kumar is Advocate at the Supreme Court of India)

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