Federalism and Identity Politics: Managing and Diversityand Autonomy

In the current global environment, the “one nation, one language, one culture” paradigm of the Westphalian state is rapidly becoming anachronistic. Modern states are, in essence, multinational, multi-ethnic, and multi-religious. The defining problem of the 21st century is how to deal with identity politics-the use of political claims based on a specific group identity-without breaking the state apart.

Federalism is identified as the key legal and institutional response to this problem. Federalism involves the allocation of sovereignty between a central government and sub-national entities, thus enabling “shared rule” and “self rule”. This article will explore how federalism structures respond to identity-based demands for autonomy and the resulting legal tensions.

The federal fact is central to the understanding of contemporary Indian Politics. Federalism has imparted resilience to Indian democracy. Traditionally, the concept of federalism involved relationships between central governments and federated units. Defined in legal constitutional terms a different power distributions between the central governments, the states and local governments, they typically limited relationships to those governments, notably between various actors in the executive branch.

THE MULTILEVEL INSTITUTIONAL DESIGN OF INDIAN FEDERALISM

Since 1989, India has witnessed a shift from a one-party dominant system to a multiparty configuration at the national level and an extremely diversified set of party systems at the state level. This has engendered the phenomenon of ‘divided government’ such that the two Houses of the parliament and state legislatures are controlled by different sets of coalition governments at the Union as well as in many states. As a result, inter-governmental negotiations and policy harmonization have acquired critical importance.

There exists a substantial body of literature that focuses on the structure of executive organs at the central and state levels. The traditional forums for these negotiations are the National Development Council, the Inter-State Council, meetings of executive heads of governments, and ministerial and secretarial conferences from the Union and the states. These interactions are all along the vertical axis, which is the predominant patten of inter-governmental relations in India.

Legislative Federalism 

‘Legislative Federalism’ is a characteristic of systems where the federal second chamber becomes an important instrument for articulating state rights or interests. This is typical of presidential federal systems built on the principles of separation of powers combined with division of powers. These features entail governments with fixed tenures and powerful federal second chambers.

Judiciary and Indian Federalism

We now consider research on the role of the federal judiciary, and in particular the Indian Supreme Court, in balancing federal (union)-state relations. The federal judiciary was initially accommodative, and perhaps excessively so, of the views and policies of the Union executive.

Multilevel Federalism

Since the 73rd and 74th Constitutional Amendments (1993), local self-government institutions, though they continue to be the creatures of state legislations, have acquired a constitutional sanction. No state legislation has developed in practice all the powers envisaged for them in the 11th (29 subjects) and 12th (18 subjects) schedules of the constitution.

THE FRAGILITY OF INDIA’S FEDERALISM

The abrogation of Article 370 has revealed the ambiguities that have long been apparent in the Indian federal system. Asymmetric agreements have been arrived at in the resolution of a number of regional conflicts in India. The autonomous status of Kashmir was the oldest and, in its original form, the most extensive of these arrangements. However, there has been a contingency to autonomy arrangements, which have been subject to revision by popular majorities at the all-India level.

S.R. Bommai v Union of India,  it was a major supreme court decision that greatly curbed the arbitrary application of Article 356 by the central governments to dissolve state governments. In this case, a nine-judge bench held that the majority of a state assembly’s membership must be proved only on the floor of the house and not by the Governor’s assessment. The court also held that federalism and secularism are components of the basic structure of the constitution.

Kesavananda Bharati v. State of Kerela , the court introduced the “basic structure doctrine”, holding that although Parliament has the ability to modify any aspect of the constitution through Article 368, it cannot change the basic foundational elements of the constitution, such as federalism, judicial review, and separation of powers. 

State of Karnataka v. Union of India, it was historic case in the Supreme Court of India on federalism, where the court upheld the appointment of a commission of inquiry by the Central Government against state ministers. The court held that commissions of inquiry do not violate the federal character of the Constitution and that the Center has the right to investigate corruption at the state level.

The process of regionalization of the Indian party system during the period 1989-2014 made it seem as if the process of deepening federalism and increasing regional autonomy relative to the Central government was an almost inevitable one. However the emergence of Bharatiya Janata Party as a national political power has changed this course. By striking down Article 370 and dividing the Jammu and Kashmir state into two Union territories, the party has shown that it is possible to use the inherent flexibility of the federal framework to centralise power and change the size, powers, and status of a constituent unit of the Indian Union- the only unit with a Muslim majority population.

Asymmetric federalism is where certain federal units are accorded differential rights, which can be in recognition of their unique ethnic identity. In this case of Jammu and Kashmir, the negotiation of Article 370 was a transitional and contingent constitutional provision that was arrived at in the midst of an ongoing conflict while the Indian Constitution was being finalized. Over the years, this “transitional” provision had become a semi-permanent institutional compromise, although this was always an uneasy compromise. The autonomy provisions of Kashmir had been progressively undermined under successive administrations as the tensions between the ambitions of Prime Ministers from Jawaharlal Nehru onwards to integrate the state more closely into the Indian Union and the ambitions of most Kashmiris to retain a special status for their state had grown. Since 1954, as many as 94 out of 97 items in the Union List and 2/3rd of the constitutional provisions have been applied to the state with the concurrence of the Supreme Court.

In terms of design, the federal framework in India provides a weak check on the power of a parliamentary majority-led government. The federal framework in India provides fewer checks on the power of national majorities. For example, the Rajya Sabha is proportionally representative of the Lok Sabha, instead of giving equal representation to all states irrespective of their size, and the Rajya Sabha has fewer powers than the Lower house. Fewe powers are constitutionally assigned to federal subunits.

Though the abrogation of Article 370, the division of Jammu and Kashmir, and the reduction of the status of the successor administrations to Union Territories, the government has utilized the flexibility of the federal provisions of the constitution for different purposes. This is not the first time that the central government has utilized its powers to divide a state in the absence of a local consensus. This was also the case with the formation of Telangana in 2014. As in the case of Telangana, the formation of the Union Territory of Ladakh does address a long term demand in this region with a large Buddhist population. Nevertheless, the choice to convert the rest of the Jammu and Kashmir state into a union territory, simultaneously with the abrogation of Article 370, is an exception with far reaching and as-yet-unknown implications in Kashmir and for Indian federalism

TERRITORIAL AUTONOMY AND THE MANAGEMENT OF CONFLICTS IN INDIA

Since the Indian state was faced with various demands for autonomy, some of which were for outright secession, the architects of the Indian constitution were apprehensive about “excessive federalism” because they thought that this would let loose centrifugal forces. The rise of Muslim communalism and the division of the sub-continent on the basis of religion in 1947 ensured that religion would never be invoked in the reorganization of the Indian federal structure.

When the new wave of linguistic nationalism forced the reorganization of Indian states in the 1950s and 1960s, the founding fathers formed a three-member State Reorganization Commission in 1953. The Commission displayed creative constitutional imagination when it submitted its report in 1955 to meet the special needs and political ambitions of territorially mobilized groups in a manner that seeks to reconcile the dominant concerns of India’s security and integrity with territorial ‘self-rule’.   

The fact that different forms of autonomy function within a centralist federal system in India makes them vulnerable to symmetrical tendencies, wherein powers decentralized or devolved in a multilevel federal system tend to re-concentrate back to the center/federal or subnational governments. While the abrogation of Article 370 in J&K is an exemplar of re-concentration of power at the center, the functioning of the six district in the hill areas of Manipur under devolutionary autonomy is an example of the reluctance to devolve or re-concentrate powers at the subnational level. Though established in 1973, these six district councils have been vested with limited powers and are conspicuously short on legislative powers concerning identity-preserving powers such as land and resources, unlike their counterparts in Nagaland. The subnational governments across party lines have also been reluctant to devolve powers. Powers such as sanitation, public works, and forest (except reserved forest), for instance, have never been devolved.

One such commonality that ties together different strands of territorial autonomy is the provision of weak power-sharing. The Bodoland Territorial Council is a classic illustration where less than 1/3rd of the Bodo population controls 75% of the administrative posts. The normative basis of territorial autonomy, which derives from the recognition of minority rights to ‘self-rule’, must therefore accommodate the minority groups within and across the multilevel federal polity of India. The fact that the logic of self-rule necessarily drives ‘shared-rule’ within and across the multilevel polities must be recognized and promoted by all as an abiding value if territorial autonomy is to survive as the most defensible institutional strategy to keep together the deeply divided societies of India and elsewhere.