Is the Indian Federalism in Crisis?: Opinion Paper

AUTHOR'S PROFILE: The author, Bhakti Parekh is enthusiastic about spreading awareness through the written word. She has a love for learning different languages as language gives insight into different thought processes and cultures. She is an avid reader and one of her favourite genres is crime thrillers.

CONCEPT OF FEDERALISM

‘Federalism’ is a term that originates from the Latin word ‘foedus’. It means ‘a treaty or compact’. A form of government where political power is divided by the Sovereign between various units. Thus, “the term ‘federalism’ refers to the constitutionally allocated distribution of powers between two or more levels of government in the nation-state – one, at the national level and the other, at the provincial level, state or local level.”[1] Lord Bryce interestingly describes federalism. “The system was like a great factory wherein two sets of machinery are at work, their revolving wheels intermixed, their bands crossing one another, yet each set doing its work without touching or hampering the other.”[2]

So, it can be seen that in a federal system, both the levels of government have their independence while still being interdependent. Further, the main features of a federal system are that there should exist a written constitution, that such a constitution should be rigid, the judiciary should be independent, both the levels of the government directly affect and operate on the life of citizens, and that there should be an allocation of adequate sources of revenue for the government at each level.[3]

FEDERALISM IN THE INDIAN CONTEXT

Federalism is a vast concept and has the character of being flexible. There exist multiple theories and different kinds of federalism. The type of federalism in the United States is similar yet different from the type of federalism that exists in India. Both the countries have dual polity – one for the Central/Union government and another for the state government. However, that’s where the similarity ends. India, unlike the US, has just one Constitution for the whole country. India, like Canada, adopted the parliamentary-federal system and has a three-tier structure of government that includes the Union and State governments which are based on the constitutional distribution of powers, and the local governments which are based on the devolutionary model established by the state legislature.[4]

It is the ‘Union of India and not the ‘Federation of India’. This is because the federation in India is a result of the devolution of power and not the result of an agreement and no State has the right to secede from it. The words of Dr. Ambedkar help us understand and appreciate this subtle difference. “The federation is a union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integrated whole, its people a single people, living under a single imperium derived from a single source.”[5]

Another interesting fact to note is that the term ‘federal’ has not been used anywhere in the Constitution of India. However, the Union of India has federal attributes which are similar to other federations. The federal structure in India is such that it has a strong Centre.

The Indian federal structure differs from other federations in many ways and has a few special features.

• There exists a single constitution for both the Union as well as the States.
• The States do not have separate citizenship and there exists only single citizenship.
• Common Civil Services – All India Services exist which are common to the Union and the States.
• A common Comptroller and Auditor-General are appointed by the President of India.
• A common Election Commission exists
• There exists a single and integrated judiciary under which the Judges of the Supreme Court and the High Courts are appointed by the President of India.

These features exist to help in avoiding the evils of dual polity and so that unity of the nation is promoted. Ambedkar justified these special features by stating, ‘India will have a federation and at the same time will have uniformity in all the basic matters which are essential to maintain the unity of the country.’[6]

The fact that India is not a federal state in the traditional sense of the term was expressed as an opinion in the case of Pradeep Jain v. Union of India.[7] The Indian Constitution has made the Union or the Centre stronger or more powerful than the states and this asymmetrical or centralized federalism was brought into place to prevent further disunity in the country.[8]

Thus, in the Indian context, it can be said that federalism is asymmetrical and centralized.

PHASES OF INDIAN FEDERALISM

Indian Federalism, since its Independence, has gone through three major phases. In the beginning, there was a single major party in place, i.e., the Congress, and this party consolidated the federal spirit since the beginning. There was a slow process of decentralization that took place while the party was still influential. The creation of states based on linguistic criteria showcased the regional sentiment over that of the centralized nation. The next phase is called the phase of ‘expressive’ federalism. During this phase, the Congress party’s dominance began to weaken and the regional parties began to flourish. It has been called ‘bargaining federalism” by Morris Jones, a British political scientist. It was also called ‘centralized federalism’ by Haqqi and Sharma. There was an active and direct conflict that emerged between the States and the Centre. The third phase is that of ‘multi-party’ federalism. During this phase, there was a significant rise in regional parties and it ushered in a new era of a multi-party system in the Indian political scenario. Coalition politics emerged and it further shaped the federal dynamics in India. Then the fourth phase can be said to be the return of the dominant party or single party in the federal scenario. In this phase, the BJP became the national political force. However, it does face significant opposition from regional parties at the state level.

Thus, it can be seen that the federal dynamics of the country have changed and evolved over some time due to the changing political scenario.

FEDERALISM IN CRISIS?

As discussed before, India is a semi-federal or quasi-federal structure in nature and is so due to the history and diversity of the nation. Whether Indian federalism is in crisis or not can be answered by looking at the issues that are currently being faced in India.

There is a constant power tussle going on between the State governments and the Central government. Though there is a dominant and strong party at the Centre, regional parties command great influence and power in their respective regions. There is a conflict between these regional parties and the party at the Centre. Let’s look at a few issues that have emerged recently in detail.

• The GST compensation: To persuade States to move to the GST regime, the Union or Centre has promised to cover the shortfall of tax revenues of the states for five years through a GST compensation cess. The purpose of this tax regime was to simplify the complex tax regime in India. By the end of 2019, the GST compensation given to the states was already getting delayed. The Centre citing the massive tax and cess shortfall along with the Covid-19 pandemic stated that it did not have a responsibility to pay states their share. This has led to ill will and a lot of tension between the States and the Centre.
• The Farm Bills: The Farm Bills that were passed by the Centre have faced vehement opposition from the State governments – especially the States of Punjab and Haryana. It should be noted that the States which are in charge of agriculture were not consulted. Protests against the Bills have been rampant. This whole scenario also shows that there is little to no cooperation between the Union or Centre and the States on important subjects and issues.
• The next issue is that of the Central Bureau of Investigation. Maharashtra has withdrawn its general consent that had been given to the CBI to investigate and inquire into cases in the state. Because of this, the Central Investigation agency has to take permission or get consent every time it wants to investigate in the state. This showcases the belief that the investigating agencies are not completely apolitical and are considered tools of the Centre used to further political aims.
• The Current Covid-19 Pandemic: The Covid-19 pandemic which caused the world to halt is another major issue where tensions between the Centre and State governments have risen and the conflicts have become more apparent. The nationwide lockdown that was put into force last year also caused conflict. How the states wanted to manage the scenario and the Centre imposing the nationwide lockdown clarifies that there exists a conflict. The Union Finance Minister Nirmala Sitharaman announced that the BJP in its manifesto for the upcoming Bihar elections has made a promise to deliver the Covid-19 vaccine free to all the residents in the state if the party returned to power. It later became clear that the Union government had not engaged in any discussion with the States on the distribution plan for the vaccine and the costs for the same. Focusing on the whole nation at once rather than focusing on the regions and using the federal structure to make the best out of the worst did not happen.

These various issues highlight the conflicts between the State governments and the Union government in various sectors. Co-operation between the Union and the States seems to be something that is very delicate and is in a state of perpetual change. Currently, due to the pandemic, there is an additional tension between the States and the Centre on how to deal with the whole scenario on a national as well as local level.

Based on all this, it can be said that Indian federalism is in crisis because of the constant conflict. Cooperation that is essential for the development of the nation is non-existent and the Centre and States are not on the same page on key issues.

CONCLUSION

From a theoretical perspective, it can be said that the Indian form of federalism is to some extent paradoxical in nature. The parliamentary form of federalism depends heavily on the cooperation of the Union and the States. The point of adopting a semi-federal or quasi-federal structure was so that the states while having a certain amount of autonomy would be able to develop uniformly. That, however, has not happened as there is a lot of disparity in the socio-economic developments of the various States. Conflicts between the States and the Union lead to the issues being dragged out.

The current federal structure and dynamics that exist in India are not ideal to further the goals and objectives of why the federal structure was adopted.

FREQUENTLY ASKED QUESTIONS

1. What is the kind of federalism that exists in India?

Ans. India is a quasi-federal or semi-federal. The type of federalism practised in India is called parliamentary federalism.

1. What did Dr. Ambedkar have to say about the Federal structure of India?

Ans.Dr. Ambedkar thought that the federal structure of India is unique and was made the way it was due to India’s history. He said, “The federation is a union because it is indestructible. Though the country and the people may be divided into different States for convenience of administration, the country is one integrated whole, its people a single people, living under a single imperium derived from a single source.”

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REFERENCES

[1]George Anderson, Federalism: An Introduction, Oxford, Oxford University Press (2008).

[2]Aaron Wildavsky, American Federalism in Perspective (Little, Brown) (1967).

[3]S.A. Palekar, Federalism: A Conceptual Analysis, 67 The Indian Journal of Political Science (2006).

[4]The Supreme Court of India: The Rise of Judicial Power and the Protection of Federalism, in Courts in Federal Countries, 223–255 (Manish Tewari, Rekha Saxena).

[5]Constituent Assemble Debates, Vol. VII, p. 43.

[6] K.H. Cheluva Raju, Dr. B.R. Ambedkar and Making of the Constitution: A Case Study of Indian Federalism, 52 The Indian Journal of Political Science (1991).

[7]Pradeep Jain v. Union of India, 1984 AIR 1420.

[8]Ambar Kumar Ghosh, The Paradox of ‘Centralised Federalism’: An Analysis of the Challenges to India’s Federal Design, ORF, https://www.orfonline.org/research/the-paradox-of-centralised-federalism/(last visited Apr 6, 2021)