Questions over responsibility and culpability are being repeatedly raised in the wake of the labour crisis unfolding on the vast network of roads and highways that were in fact meant to drive prosperity and growth. Nevertheless, this milieu of allegations and counterblasts has raised certain crucial queries that are sure to cause ripples in the still-waters of Indian federalism. For far too long have we been blatantly misled that India is a federal marvel and that Indian polity is inherently federal. However, with every crisis, federal fault lines widen and the governance systems further collapse thereby developing a situation as allows passing of the buck from one power centre to another. This in my opinion is a direct function of the fallacies that we perpetrate in the name of federalism.
To truly gauge the nature of our governance system, certain questions need answering; Is India truly a federal State? Was India ever actually meant to function in a federal manner? Was the nature of our current federalism super imposed upon us? And finally, is India’s federalism so diluted that it remains functional solely until the next crisis situation strikes?
Our unique brand of federalism (or the lack thereof) has unfortunately gotten entangled in the maze of political alignments and misalignments, judicial pronouncements and overreach as also bureaucratic formalities. It thus is crucial that the answers must be sought in our constitutional history.
The destruction of the Centre-State relations has, perhaps myopically, been attributed solely to the coming about of a strong Central Government with the post-2014 Modi era. Thereby, fuelling and further perpetuated the common refrain that the Modi Government has bypassed the State Governments and introduced a direct communication between the Centre and the district administration. Though I do not discount the same, it must be brought forth that this is precisely how the framers of our Constitution designed it to be. Being mindful of the peculiarities the new Republic of India faced, the Constituent Assembly purposely drifted away from the mould of not only classic federalism, but also federalism in the most diluted sense[1].
Just as the government of the day, the Constituent Assembly as far back as 1946, waxed eloquent unto the cooperative nature of our yet to be adopted ‘federal’ Constitution. However, this fooled no one and often those most closely associated with the drafting of our Constitution did not want to associate the Constitution with partisan notions of ‘unitary’ or ‘federal’ and rather were focussed on the Constitution eventually serving the purpose of taking the new republic into a new era of property[2]. It is therefore not for no reason that stalwarts such as Ambedkar considered the Constitution a federal document only insofar as it established a ‘dual polity’ and Pannikar went as far as terming Indian polity at best a ‘fair-weather federalism’ (evidently a ‘titular’ inspiration)[3].
Litigation over the years has made serious inroads at establishing a truly federal system. Yet, the courts can only do so much when the Constitution itself is primed to concentrate power rather than dissipate it. One could go on citing numerous instances in support of this reality ranging from massive disparity in financial resources between the Centre and the States to the almost school-yard bullying by Governors in opposition ruled States. Nevertheless, barring a few blatancies, such central concentration of power and resources not only has statutory backing but also constitutional sanction. Similar is the scenario when considering the civil services, the most crucial of which are at the end of the day All India Services appointed by and owning allegiance to the Centre.
To drive home the point, I must draw one’s attention to Article 365[4]. Introduced by Ambedkar barely ten days prior to the adoption of the Constitution, it provides for the Centre to declare, in the scenario that its directions have not been complied with by the States, a constitutional breakdown and in effect impose an emergency under Article 356. A most draconian provision, the fact that it found a place in the final version of the Constitution despite vehement opposition in the Constituent Assembly speaks volumes of the utter lack of faith in federal principles inherent in our governing document. A telling observation in this regard was made by Granville Austin in his seminal work wherein he states that,[5]
“…reliance on central power by the British profoundly affected India’s future. Because of it, Indians had neither experienced nor participated in the working of a more traditional federal system …Their immediate experience with government, therefore, almost inevitably led them towards centralisation.”
Evidently, therefore, the governance issues brought to the fore by the present crisis aren’t something that we as a nation are facing afresh or which may astonish us; it is surely as per design. In fact, the inclusion of the State Government in this milieu is really a tribute to the years of dogged resistance against the hegemony of central power. Nonetheless, at the first instance of trouble, we as a nation and as a people are comforted in a direct ‘Prime Minister–to–District Magistrate’ parley. Thus, the failings of the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005, both perceived and actual, are in fact failings of our fair-weather federal Constitution.
There is no debate on the point that a nation-State as large as ours cannot be effectively governed from Raisina Hill alone. However, it is equally true that until recently at the slightest nudge from the Governors, a direct central administration vis-à-vis district administration parley is established, for practically India is a dual-polity rather than a federal model. Perhaps it is time that we recognise the same and affix responsibility unto the Centre.
*The author, a graduate of the National University of Juridical Sciences, Kolkata, is a practising advocate at the Supreme Court of India.
[1] Austin, The Indian Constitution: Cornerstone of a Nation (OUP, 2014)
[2] Constituent Assembly of India Debates (Proceedings), Vol XI (26th November, 1949)
[3] Austin, The Indian Constitution: Cornerstone of a Nation (OUP, 2014), p. 237
[4] Article 365 of Constitution
[5] Ibid, pp. 234-235