A challenge to Indian federalism

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.

( Jayaprakash Narayan )

RTI : People's Law

The impact of RTI goes beyond just providing access to information. Here’s a look at the far-reaching systemic and attitudinal changes wrought by the law since its inception eight years ago:

Empowering the poor
For all the spotlight it has enjoyed in recent years, the RTI movement was actually started without much fanfare by the poor. It was in the remote villages of Rajasthan where, mobilized by activists like Aruna Roy, the assumed beneficiaries of development began raising hard questions about the gap between the rhetoric and reality of fund disbursement. Ghost entries in muster rolls deprived real people of their entitlements. There were also demands to account for glaring discrepancies between development work on paper and on the ground. Social audit in the form of public hearings and prolonged agitations culminated in the first-ever RTI measure in 1997, when the Rajasthan government issued a notification declaring that people were entitled to copies of government documents. Similar grassroots movements were instrumental in the enactment of RTI laws in nine states before the central Act finally came in 2005. Given its origins, it was but natural for the poor and marginalized to have taken to RTI, both in urban and rural areas, for a range of issues concerning them.
Breaching the steel frame 
For those holding the reins of governance, RTI has subverted a colonial law called the Official Secrets Act, the Holy Grail that allowed them to keep the people out of the loop. Officials had the impunity to label all their documents with any of the four classifications of opacity: “restricted”, “confidential”, “secret” and “top secret”. But RTI changed that by making access the rule, secrecy the exception. Now citizens can only be denied information falling under 10 exempted categories in Section 8 of the RTI. Officials have been forced to recognize that public interest takes precedence over secrecy. Further, Section 4 of the RTI requires public authorities to make proactive or suo motu disclosures of information, reducing the need for applications.
Deepening democracy
Before the enactment of RTI in 2005, only MPs were authorized to put questions to the central government and MLAs to their respective state governments. In a revolutionary change, any of the 1.2 billion citizens of India is now statutorily empowered to put questions, which the public authority concerned would have to reply within 30 days. Thus, democracy is no more about just exercising franchise at the time of elections. More importantly, it is about constantly engaging with the government through the RTI mechanism. RTI gives flesh to the first principle of democracy that people are the sovereign.
Exposing corruption
RTI has emerged as an anti-corruption tool for whistleblowers. It has been so effective in unearthing corruption that it triggered off a wave of fatal attacks on RTI activists. The repercussions of the greater transparency ushered in by RTI have forced the government to come up with a slew of Bills demanded by civil society: to protect whistleblowers, to redress public grievances and to set up a Lokpal or Lokayukta to deal with corruption allegations.

The Act has changed the power equation of the Indian citizen with the government. It has given the ordinary Indian a tool to exercise her sovereignty —  to ask questions and demand answers. The RTI application has forced panchayats, states and the Centre to disclose information, and has initiated an era of citizen-driven transparency and accountability. It has brought the energies of public-spirited Indians to the domain of democratic governance. It has helped reduce corruption and arbitrary use of power. The citizen’s sustained struggle against injustice and inequality is its most significant contribution and the most encouraging sign for Indian democracy .

Obama shows why India must not seek a presidential system

Narendra Modi’s rise owes much to his image as a decisive, efficient go-getter. A recent magazine poll showed 86% of new voters wanting an “authoritative and decisive” prime minister. They hate the corrupt bumbling and drift of the UPA government. 

    For the same reason, many Indians favour a presidential system of government, to ensure decisive and clean governance. Remember, during the debates on the creation of the Constitution, a presidential system was favoured by big names like B R Ambedkar and Shibban Lal Saxena.
    In a presidential system, the ruler has a clear mandate personally from the people. This contrasts with parliamentary systems with coalitions. The Prime Minister can emerge after much negotiation, and can be a non-entity with no public backing, like Inder Gujral. Parliamentary systems can lead to hung parliaments that are highly instable, indecisive and corrupt, leading to the purchase of legislators with promises of office or cash. Actual policies and outcomes bear no relation to what voters want, or what the public interest may be — the very private interests of a few legislators can decide who rules and what laws are passed.
    These are good reasons for reforming the current Indian system. But the current political farce in the US proves that a presidential system can be just as indecisive, bumbling and corrupt as a parliamentary system.
    Indians moan and groan about their political system but so do Americans. The US President is directly elected, and so cannot be toppled by defectors (the fate of VP Singh), or the break-up of a ruling coalition, or by withdrawal of outside support to a minority government (the fate of Gujral). Yet, as Obama has discovered, direct election does not make him authoritative, decisive, or free from constant deal-making.
    There is NO guarantee that the President’s party will control both houses of the US Congress. Today, the Republicans control the House of Representatives, and so can defeat Obama’s budgets, nominees for office, and proposed laws. The Republicans have just ensured that many parts of the US government have to be shut down for want of funds. They now threaten to halt any increase in the government’s total debt, which means that by late October the US government may default on its debts. India is guilty of a thousand sins including corrupt and wasteful spending, but its Opposition parties cannot shut down the government or force a debt default. Warts and all, the Indian parliamentary system looks saner and stabler than the American one today.
    Even when the US President’s party controls both Houses of Congress, legislators have agendas of their own. The President has to cajole or bribe them with promises of projects or subsidies for their districts and favoured vote banks, and even so may fail. President Clinton, for instance, was elected in 1992 on a platform promising healthcare reform to cover all Americans. But despite all his deal-making and cajoling, he couldn’t get Congressional approval, even though his party controlled both Houses.
    Sobered by this history, Obama refrained from crusading for his own version of healthcare. Instead he just provided a broad outline, and left all reform details to the two Houses, accepting the many compromises that emerged. Lesson: even on a top priority issue, the US President cannot be “authoritative, forceful and decisive”. He has to persuade others, and such persuasion includes deals to meet the demands of key legislators. This is not quite cash for votes, but stinks morally. Let nobody think that the US system ensures noble adherence to the public interest, or lessens the influence of key vote banks and politicians.
    Now, presidents have certainly been all-powerful in communist countries and dictatorships across the world. They have certainly been authoritative and decisive. But that’s not what Modi’s supporters want. They seek a democratic government that is stable, decisive, and free from blackmail or corrupt demands.
    Switching to a US-style presidential system cannot ensure this. Directly elected presidents have to deal with elected legislators having their own agendas, and cannot steamroller them.
    Rather than go presidential, a good reform of our system would be for Parliament to elect the prime minister after every election for a full term. This means he cannot be toppled, can focus on good governance, and resist blackmail by corrupt legislators and vote banks. However, the prime minister will still need to take others along with him. Legislators will continue to wield much power, and rightly so.
    Democracy means spreading power among several people and institutions to act as checks and balances, not concentrating all power in a president. Our governments should be somewhat more decisive, but not completely so.

~ SWAMINATHAN S ANKLESARIA AIYAR ( TOI )