The Federal Issues in Indian Polity

Discord on NCTC

The federal issues in the Indian polity have come to the fore in recent times. They came up prominently when the proposal of the Union Home Ministry to set up a National Counter-Terrorism Centre (NCTC) was placed before the meeting of Chief Ministers convened by the Union Home Minster. Several Chief Ministers opposed the proposal tooth and nail. The Chief Ministers included not only the Chief Ministers of the States where the BJP, the main Opposition party at the Centre, is in power, especially Narendra Modi, the Chief Minister of Gujarat, and Chief Ministers who head regional parties in power like Smt Jayalalithaa, the AIADMK, in Tamil Nadu, and Naveen Patnaik, head of the BJD in Odisha, but even Chief Ministers of alliance parties in the UPA Government at the Centre, namely, the Trinamul Congress in West Bengal, headed by Smt Mamata Banerjee.

All those Chief Ministers took exception to the Central Government taking a unilateral decision without consulting the State governments even though law and order, according to the Constitution, is a subject which falls in the State list as per the Seventh Schedule of the Constitution. (It may be pointed out that the word that appears in the State list is ‘public order’ and not ‘law and order’. Also ‘police’ are under the jurisdiction of the State and it is they who have tackle the violation of public order by the terrorists.)

The Home Ministry of the Union Government deigned to convene a conference of the State Directors General of Police and later the Chief Ministers of the State only after strong objections were raised by the Chief Ministers. What added fuel to the fire was a remark, alleged to have been made by the Union Home Secretary, that the Directors General of the Police of the State governments were “not to behave like steno-graphers to the Chief Ministers and Home Ministers of the State”.
The Chief Ministers also did not approve of the proposal to put the NCTC under the IB because the IB has been used by the Central Government to keep an eye on the Chief Ministers and Ministers of State governments. They feared that the Central counter-terrorist agency will be used by the IB for the same purpose.

The Union Home Minister agreed to make suitable amendments, including taking the NCTC out of the jurisdiction of the IB and including State Directors General in the composition of the NCTC. Both the Prime Minister, who inaugurated the conference, and the Home Minister, who addressed it, appealed to the State Chief Ministers to agree to their proposal, pointing out that the terrorist threat was not confined to the juris-diction of a single State, it spills across several States and therefore the Central and State gover-nments should join hands to deal with the terrorist threats which pose serious challenges to the security of the Indian Republic. In spite of the fervent appeal, the conference of Chief Ministers could not arrive at a consensus, though the Home Minister insisted that an NCTC is a must for dealing with the grave challenge of the terrorists who are determined to attack the authority of the state by their own armed forces in which men and women and even children mainly of the tribal community are enlisted and indulge at will in attacking police stations, public offices and panchayats etc. and recently abducting even high level officers like Collectors and elected MLAs.

Only a united strategy and efforts by the State and Central governments can effectively deal with the grave challenges posed by the terrorists. After abduction of Collectors and MLAs, the terrorist outfits made demands for the release of several terrorists and their helpers including those guilty of murder and held in prison by the state. Should the State governments deal with the situation as it arose by bargaining with the terrorists or should there be a nationally agreed strategy such as not to concede to any of the demands of the terrorists in return for the release of officers or other individuals abducted and held in custody by the terrorists? On the policy, there has been no agreed formulation. Reference was made to the ‘no negotiation strategy’ of a country like Israel though it was pointed out that even a country like Israel had to bargain on many occasions. The position, as of now, in dealing with the terrorist threat seems to be nebulous and indecisive and does not inspire confidence.

It has been agreed that the problem of terrorists is not just of law and order; it is also of ‘development of the tribal people and regions’. These development efforts have to be taken up by the State administration rather than the Central administration. The Centre can at best offer financial support.

The challenges posed by the Maoists in large forest tracts extending over several States like MP, Maharashtra, AP, Odisha, West Bengal, Chhattisgarh, Jharkhand and Bihar are so serious that a joint strategy by the Centre and States is necessary. Yet the Home Ministry is not able to bring around the States to accept the view. Not that the States do not realise the gravity of the terrorist challenge but clearly there is lack of trust generated by the tendency of the Centre to assume that it knows best and the States would have to fall in line. This, the Chief Ministers of States are not prepared to accept despite the gravity of the situation. The Chief Ministers have reminded the Centre many a time that they are nearer to the field than the Central Ministers and their view must be taken into account by them before formulating policies and programmes, weather in respect of law and order or development.
Terrorism as an organised threat, whether external or internal, is a phenomenon which did not exist when the founding fathers framed the Constitution nor could they have anticipated it in the then existing situation. Hence it does not expressly figure in any of the three lists in the Seventh Schedule of the Constitution. Perhaps time has come for an amendment to the Constitution to include the subject of terrorism expressly in the concurrent list. A full-fledged discussion on the subject in the Central and State legislatures will provide the opportunity for a comprehensive discussion on the nature of terrorism and strategy and organisation for dealing with the threat. This would remove the ambiguities and provide a base and framework for joint action by the Union and State governments.

The Chief Ministers resent that they have to go to the Planning Commission to get funds due to them. Recently after a meeting in the Planning Commission to seek funds for his State, Prakash Singh Badal, the Chief Minister of Punjab, came out in a rage and told the waiting reporters that ‘they were being treated like beggars by the Planning Commission and their governments like municipal corporations’. Similar views were expressed by Jayalalithaa of Tamil Nadu and Naveen Patnaik of Odisha.

The arbitrary imposition of President’s Rule on the States in the past has created a deep distrust between the Centre and States. In today’s political scenario, it is unlikely that such an arbitrary exercise of power by the Union Government would be possible.

The idea that there are some national issues on which both the Union and State governments under different political parties should work in unison, and that the national issues transcend cleavages of caste, community and ideology must sink in the political psyche of the country.

Bill on Lokpal and Lokayukta

UNDER the pressure of the fast by Anna Hazare, the Union Government was forced to take up the legislation for setting up a Lokpal to deal with corruption which has been pending for the last 42 years. The Hazare team insisted that the Bill should include not only the appointment of the Lokpal at the Centre but also Lokayuktas in States to deal comprehensively with corruption. But the latter provision became a stumbling block. Several Chief Ministers like Naveen Patnaik, Jayalalithaa and Mamata Banerjee opposed the inclusion of the Lokayukta in the Central legislation saying that this violated the federal character of the Constitution. The Bill could not be passed in the Rajya Sabha where the ruling Congress had no majority and the legislation is hanging fire.

Issues of External Affairs

EVEN on issues relating to external affairs the Opposition of the alliance partners in government has deeply embarrassed the Union Government. Thus just on the eve of departure of Prime Minister Dr Manmohan Singh for a long awaited visit to Bangladesh, during which a historic treaty of cooperation between the two nations was to be signed, the Chief Minster of West Bengal, Smt Mamata Banerjee, refused to join the Prime Minister’s delegation on the ground that she opposed the proposal for sharing the Teesta river water. At the last moment the proposal had to be dropped.

This disappointed the Bangladesh Government and its Prime Minister Hasina who was trying to move closer to India, and gave a point to the Opposition parties there to foment anti-India sentiments and help the Bangladesh National Party led by Khaleda Zia and her anti-India party supporters to come back to power.
In yet another case, the External Affairs Ministry succumbed to the pressure of a supporting regional party. The US, always assuming the role of protector of civil rights in all the countries of the world, introduced a resolution in the UN Committee on Human Rights to condemn the atrocities on Tamils in Sri Lanka and denial of civil liberties to them. The US started pressuring India to support the resolution. The Minister of External Affairs, S.M. Krishna, issued a lofty statement that India does not support any country-specific resolution on ‘human rights’, fearing that its own treatment of minorities in cases like attacks on Sikhs in Delhi after the assassination of Indira Gandhi by Sikh guards, attacks on Muslims in Gujarat after the burning of a bogey carrying Hindu kar sevakas and ‘suppression’ of the Muslim separatists in Kashmir, may also attract similar resolution against India’s record an civil liberties. However, soon India had to change its stand when the DMK ally, though out of power in Tamil Nadu, pressurised the Union Government to support the resolution to uphold the cause of the Tamils. The External Affairs Ministry supported the resolution though with some amendments as a fig-leaf. The Sri Lankan Government immediately responded by raising its objection to the nuclear plant in Kudankulam and its harmful effects of nuclear radiation on their people. The government was hard put to mollifying the Sri Lankan Government.

The US, ever eager to poke its nose in the affairs of other countries, saw the opportunity to meddle in Indian affairs. It saw that the Union Ministry of External Affairs succumbing to pressure of the regional parties and, above all, from Mamata Banerjee, head of the Trinamul Congress. The US Secretary of State, Hillary Clinton, started her recent visit to India from Kolkata where she met the fiery Chief Minister of West Bengal and heaped praise on her for seizing power from the Communists after their uninterrupted rule of over 34 years. She also promised liberal investments by US firms to West Bengal. The Chief Minister felt highly elated by the US largesse. This was a clear example of US interference in India’s internal affairs and violation of the Indian Constitution. Item 10 of the Seventh Schedule clearly states that ‘foreign affairs’ and ‘relations with foreign countries’ fall in the Union list. And yet the Ministry of External Affairs could not muster the courage to take exception to Mamata’s direct dealings with the US Secretary of State or the brazenness with which the latter dealt directly with a State Government.

Assertion of Autonomy by Chief Ministers of States

IT is for the first time that Chief Ministers of States have joined to assert their autonomy in a federal polity and resist the Central Government in what they consider as illegitimate encroach-ments on that autonomy, and forcing the Central Government to concede the position taken by the State governments. Why has this major change in Centre-State relationship come about? The Constitution is the same but the working relationship between the Centre and States under the Constitution has radically altered. This requires careful consideration.

The Constitutional Features

THE Indian Constitution does not mention any-where that India is a ‘federation’. The very first Article says that India “shall be a union of States”; yet the Indian Union does have the characteristic features of a federation as defined in textbooks of political science.

A federal state is distinguished from a unitary state where only the Central Government exists. For example, in Britain there are no other governments but the Central Government and only local authorities exist. Even there the assertion of local sentiment forced the Central Government to concede authority to Scotland’s regional government as though it were an independent state.

The Indian Constitution fulfils the basic features of the federal polity as mentioned by Prof K.C. Where, namely, (1) there is a clear division of powers and functions between the Central Government and State governments, and (2) each is independent in its own sphere of activity.

However, it is rightly stated that the Indian Constitution has several provisions which make the Central Government more powerful than the States. The founding fathers of the Indian Constitution—members of the Constituent Assembly—did so advisedly. Independence was accompanied by partition which was a painful blow to the unity of India, so much cherished by the leaders of the struggle for independence. They did not want the story to be repeated. They did not want the centrifugal and fissiparous tendencies, of which they were fully aware, to threaten the unity of what remained as India after partition when West Punjab, NWFP, Sindh, Balochistan and East Bengal, the Muslim majority areas, were made into a Muslim State called Pakistan. The unity of Pakistan was broken in 1971 when East Pakistan become Bangladesh.

The makers of the Indian nation wanted to preserve the unity and integrity of India at any cost. Hence the provisions to make for a strong Central Government. Thus, Article 355 makes it a duty of the Union ‘to protect’ every State against external aggression and internal disturbance and to ensure that ‘the government of every State is carried out in accordance with provisions of the Constitution’. Article 356 provides for imposition of President’s Rule (that is, of Central Government) by issuing a proclamation. Under this provision, ‘functions of the Government of a State’ will be assumed by the President and the Governor of the State will carry on administration under the direction of the Union Government. The President (on the advice of the Central Government) can even declare Emergency under Article 358 when even basic fundamental rights of the citizens, granted under Article 19, like freedom of speech, expression and assembly and free movement, could be abrogated. Smt Indira Gandhi as the Prime Minister imposed the Emergency in 1975 and exercised dictatorial powers bending the Constitution at will. The Supreme Court succumbed by conceding that even the right to life would stand suspended during the Emergency

The greater constitutional powers of the Centre have been reinforced by greater financial powers of the Centre. The Constitution gives more liberal and flexible sources of revenue to the Centre like Income Tax, Corporate Tax, Excise and Customs. Service tax has been added to enrich the kitty of the Centre. No doubt some of the revenues like income tax are shared with the States as per the recommendations of the Finance Commission. But the States are dependent on the financial support of the Centre through the allocation of Plan funds by the Planning Commission.

The nature of formation of a federal party in India has been different from that in the USA. There the states existed prior to the formation of a federal government. The states came together to form a federal polity. But in India, prior to independence, a strong Centre already existed under the Viceroy who was representative of the British sovereign, while provincial Governors were subordinate to him and carried out the administration of provinces under his direction and supervision. Even prior to British rule, under the Mughal dynasty, which ruled over two centuries over large parts of India, the emperor had all powers and provincial subedars, nominated by him, were accountable to the emperor.

Under Article 3 of the Indian Constitution, a new State can be formed or its boundaries altered or its name altered by Parliament, making the States creatures of the Central Government

Political Dynamics

APART from the provisions of the Constitution, the dynamics of political power determines very much how the Constitution actually functions. Under the first Prime Minister of free India, Jawaharlal Nehru, who held the position for a long period of 17 years, the Indian federal polity developed strong unitary tendencies (see my article ‘Unitary Trends in a Federal System’ published in IJPA). Nehru was not only the Prime Minister; he was the undisputed leader of Parliament, his party and the nation. Such was his immense nationwide image that the Congress could get power and form governments in all the States. He visualised planning for the country as a whole and set up the Planning Commission in 1951, which was not envisaged in the Constitution. He set up the National Development Council which was attended by the Chief Ministers who, while expressing their views, by and large supported the programmes initiated by the Centre. The officers in the Central Ministries, many of which dealt with items in the State, held frequent meetings of the State officers so that the entire administrative system work in unison. The higher officers, both at the Centre and States, mostly belonged to the IAS but IAS officers at the Centre were senior to those in the State and could carry the day. These centralising tendencies were accentuated under Smt Indira Gandhi who concentrated all political power in her hands. The Chief Ministers of States were her nominees not elected by the representatives of the party in the State legislatures. The Emergency of 1975 was the culminating point of her authoritarian tendencies. Her son, Rajiv, after her tragic assassination in 1984, saw his power weakened by the Bofors episode but even he had a national appeal and could dictate to the State leaders. Narasimha Rao, who headed the minority Congress government from 1990-95, was not an unquestioned national leader or leader of the Congress party and ruled with considerable discretion and cooperation of the Opposition and the States.

After the decline of the Congress as a national party, there started the coalition era both at the Centre and in the States. The unquestioned rule from the Centre has now become a bygone era. Today the Congress party in the UPA Government (a coalition), despite larger number of Congress Members of Parliament (207), finds it difficult to have its way. The Congress is a dynastic party and the writ of its President, Sonia Gandhi, runs in the party and even in government. The Prime Minister is her nominee. He is not the unquestioned leader of the party, nor leader of the party in Lok Sabha. He is not an elected member of the Lok Sabha but of the Rajya Sabha. He is head of government but leaves a large part of the government to Pranab Mukherjee who has emerged as the most influential member of his administration. The Congress does not hold power in most of the important States. It was badly defeated in Bihar, UP and Punjab. The BJP, the second national party, has power in several large States like Madhya Pradesh and Rajasthan. While the leadership of the Central Government is weak, several Chief Ministers like Jayalalithaa, Naveen Patnaik, Narendra Modi have emerged as leaders in their own right; popular in their own States with long administrative experience, they can stand up to the leaders of the Central Government. Clearly the centre of gravity of political power has shifted. It is no wonder that federal aspects of the polity will increasingly become more prominent.

It is high time that Ministers and bureaucrats in the Union Government fully realise the consequences of the shift of political power and give up their authoritarian tendencies to ride roughshod over the State Chief Ministers, Ministers and civil servants. They have to come to terms with a federal polity in which the Centre and States are coequal. That would be the new meaning of the term ‘cooperative federalism’.

Formerly Secretary to the Government of India and Vice-Chancellor, Goa University, Dr P.R. Dubhashi, IAS (Retd.), is currently the Chairman, Bharatiya Vidya Bhavan, Pune Kendra. He can be contacted at e-mail: dubhashi@giaspn01.vsnl.net.in