Centre and States: The Arguments from Federalism
In British India’s constitutional development, the Simon Commission of 1928 was a turning point. Indians, both Hindu and Muslim protested the lack of an Indian representative. The British Government then challenged Indians to produce proposals for constitutional reform agreeable to both communities. This they failed to do.
The Muslims of Punjab under the leadership of Fazle Husain and his Unionist Party (which included Hindus and Sikhs) wanted a weak central government (that was bound to be Hindu majority) that would not have too much authority over the Provincial governments. Jinnah himself a believer in a strong central government, was compelled to plead the line of the leaders of Muslim majority leaders of Punjab and Bengal for a weak centre.
Having established that Congress and Muslim League could not agree between themselves even after the Round Table Conferences, the British announced the Communal Award giving the Muslim League what it wanted. The Government of India Act of 1935 followed.
This envisaged fully empowered elected governments at the federal level and in the Provinces. Though elected Provincial Governments were formed in 1937 a Federal Government remained elusive. There were two reasons for this.
First, Indian National Congress and the Indian Union Muslim League could not agree on the percentage of seats to be reserved for Muslims and the powers of the Federal Government. Second, no agreement could be reached with the Princes on how much authority they would transfer to the Federation. They were resolute in surrendering no more power to an elected Federal Government than they had already allowed the Viceroy They were prepared to transfer authority over Defence, Foreign Affairs and Communications, but nothing else. As a result no elected Federal Government came into being.
At the end of WW2 Britain found it could no longer hold India and conceded the demand for Pakistan after the Cabinet Mission Plan proved abortive. Elections were held for the Constituent Assembly. The Muslim League which had been allotted 73 seats in this Assembly declined to participate in its proceedings. Congress with 208 seats thereupon decided that the Constitution should provide for a strong centre.
The problem of the Princely States, however, remained. The Independence of India Act allowed the Princes to choose between accession to India or Pakistan or independence. They had been allotted 98 seats in the Constituent Assembly. At least three Rulers wanted independence. These were the Maharaja of Travancore, the Nizam of Hyderabad, and of course, the Maharaja of Jammu and Kashmir.
Travancore was persuaded to accede to India, the Nizam forced to, and the Maharaja of Jammu and Kashmir compelled by the Pakistani tribal invasion.
The Rulers acceding to India did so under the provisions of the Government of India Act of 1935, and in the format prescribed by that Act, because till 26th January 1950 India continued to be governed by that legislation. This is true of Maharaja Hari Singh as well.
All the Maharajas were persuaded after their accession to surrender the powers they had retained when acceding. All except Maharaja Hari Singh. That is how Article 370 came into being. It was because the Maharaja had not ceded his authority in matters other than those specified in the Instrument of Accession. This gave J&K its special position – and because the Maharaja’s representatives to the Constituent Assembly insisted that the terms of the Accession be retained in the Constitution.
It is mistaken to view the distribution of powers between the federal government and the constituent States as a measure of nationalism. Indeed, it is erroneous to view demand for more powers for the States as, in any way, diminishing the attachment those States have to their nation. Nationalism is not measured by how power is distributed in a federal system.
Before the US constitution was signed in 1787 the country operated under the Articles of Confederation in which the States had all the powers. The federal government could not tax or regulate trade and had no national court or President. This was hopelessly unworkable. It led to a great debate between the Federalists and the anti-Federalists, resulting in a stronger Union, with defined roles for the Centre and the States and including a Bill of Rights for the States which gave powers to the States for any subject not mentioned in the Constitution.
The US is a country created by the States, whereas India, it is sometimes argued, is a country that has created the States. India as a country, whatever your view on its antiquity as Bharat, is a relatively modern construct, first as a British colony and then as the Constitution puts it - a Union of States. Many Indian States, like Rajasthan, UP, Madhya Pradesh are post-independence constructs. The former State of J&K was created wholly through purchase.
J&K’s status before August 2019 was embedded in the constitutional discourse of the 1930s; the recalcitrant Princes, and the reluctance of the Muslim majority Provinces to concede more than a bare minimum to a federal government. It was an anachronism, which its citizens were emotionally attached to.
It is a global truth that Federal governments have accumulated power at the expense of constituent States in a Union. Power steadily flowed from the States to the Centre from the early 1950s under Congress. In J&K too, for all the talk of autonomy, power oozed away to Delhi.
The process began, as all things in India usually do with Nehru. Older folk wryly watch the crocodile tears that Congressmen shed over the removal of Article 370. It was Congress that relentlessly attenuated Article 370 till it was but a shadow of itself. Yeh ghiste ghiste ghis jayega, Nehru told Parliament in 1955. BJP went about its business directly where Congress was coy, with a pretence of subtlety. As far as central authority is concerned, the two parties thought alike.
In this era of giveaways, the financial arrangements of the Union of India are such that States are always at a disadvantage. Involved in a competition for freebies the States are digging themselves deep into debt holes. You cannot talk of more power for the States with a begging bowl in hand.
Jammu and Kashmir lost its autonomy long before Parliament delivered the coup de grace. Under the Maharaja, J&K was a self-sufficient State living off its own resources and it continued to do so till at least 1953. Its citizens paid no taxes to the Centre and received no grants. Political developments in 1953 urged on by the need for economic development required a steady flow of central funds and that meant a centrally appointed Accountant and Auditor General. Under the Constitution, J&K had no claim on any central funds. The need for ‘development’ was one of the prime engines eroding autonomy.
Political autonomy is quite meaningless without financial autonomy. But financial autonomy is also meaningless if you do not have the resource base. It is doubtful whether any Indian State can become financially autonomous under the tax structure of our Constitution.
There is a downward spiral in States Finances that shows no sign of bottoming out. The States have now mostly stopped even talking about their constitutional authority. Given their unusually poor record of governance (with a few exceptions) one can legitimately ask what the State Governments would do with enlarged authority, even if they could get it.
A perfectly legitimate and reasonable justification exists for more powers to the States. It is the argument from democracy.
The democratic argument stems from the fact that the smaller States (especially) send only a handful of representatives to Parliament. Effectively, they have little or no role in the Central Government. It means, practically, that the small States are ruled by representatives elected by other States owing allegiance to ideologies that do not resonate locally. It is fundamentally undemocratic.
The Americans have tried to solve this by the Senate system. All States regardless of population send two Senators to Washington. The US also allows States with smaller populations a share in the electoral college greater than that justified by population. Now, the US is a very homogenous nation. Mostly white, Christian and English speaking. Compare this with India, which is ethnically and linguistically diverse and where even the main religion is not predominant everywhere.
Perhaps there is something to be learnt from the American experience.
B R Singh is a retired IAS officer who served in the J&K cadre.
