Insights into Editorial: Reflections on the ‘quasi-federal’ democracy

Context:

1. Events coinciding with the jubilee of India’s Independence draw attention to the federal structure of India’s Constitution, which is a democratic imperative of multi-cultural India, where the constituent units of the sovereign states are based on language, against competing identities such as caste, tribe or religion.
2. This built-in structural potential for conflict within and among the units, and that between them and the sovereign state, need imaginative federal craftmanship and sensitive political management.
3. With universal adult suffrage and free institutions of justice and governance, it is nearly impossible to polarise its wide-ranging diversity within any single divisive identity, despite its operational flaws, the democratic structure and national integrity are dialectically interlinked.
4. But its operational fault lines are increasingly denting liberal institutions, undermining the federal democratic structure as recent events have underscored.

Some fault lines happened in recent times:

1. First, the tempestuous Parliament session, where the Rajya Sabha Chairperson broke down (in August 2021), unable to conduct proceedings despite the use of marshals; yet, the House passed a record number of Bills amidst a record number of adjournments.
2. Second, cross-border police firing by one constituent State against another, inflicting fatalities, which also resulted in retaliatory action in the form of an embargo on goods trade and travel links with its land-locked neighbour.
3. The Union Law Minister (while in Opposition) said that Legislative disruptions are ‘legitimate democratic right, and duty’, justifying the current debate and discussion.
4. Indian federalism needs institutional amendment to be democratically federal:
5. But India’s federal structure is constitutionally hamstrung by deficits on all these counts, and operationally impaired by the institutional dents in the overall democratic process.
6. Structural conflicts– All India Services, including the State cadres. The role of Governors: appointed by the Centre, a political patronage.
7. Thus, most of India’s federal conflicts are structural, reinforced by operational abuses.
8. Yet, there is no federal chamber to politically resolve such conflicts.
9. The Rajya Sabha indirectly represents the States whose legislators elect it; this House is a major source of political and financial patronage for all political parties, at the cost of the people of the State they “represent”.
10. The Rajya Sabha is not empowered to neutralise the demographic weight of the populous States with larger representation in the popular chamber; it cannot veto its legislations, unlike the U.S. Senate. It can only delay, which explains the disruptions.
11. Joint sessions of Lok Sabha and Rajya Sabha do not appear as successful as expected.

Many deficits that hampering Federalism:

1. Democratic federalism presupposes institutions to ensure equality between and among the units and the Centre so that they coordinate with each other, and are subordinate to the sovereign constitution and their disputes adjudicated by an independent judiciary with impeccable professional and moral credibility.
2. The Indian Constitution itself has been amended 105 times in 70 years compared with 27 times in over 250 years in the United States.
3. With ‘nation-building” as priority, the constitutional division of power and resources remains heavily skewed in favour of the Centre;
4. Along with “Residual”, “Concurrent” and “Implied” powers, it compromises on the elementary federal principle of equality among them, operationally reinforced by extra-constitutional accretion.
5. While the judiciary is empowered to adjudicate on their conflicts, with higher judicial appointments (41% lying vacant), promotion and transfers becoming a central prerogative, their operations are becoming increasingly controversial.
6. India’s bicameral legislature, without ensuring a Federal Chamber, lives up to the usual criticism: “when the second chamber agrees with the first, it is superfluous, when it disagrees, it is pernicious”.
7. The critical instruments of national governance have been either assigned or appropriated by the Centre, with the States left with politically controversial subjects such as law and order and land reforms.
8. The Rajya Sabha indirectly represents the States whose legislators elect it, but continue even after the electors are outvoted or dismissed;
9. With no residential qualification, Rajya Sabha House is a major source of political and financial patronage for all political parties, at the cost of the people of the State they “represent”.
10. Thus, most of India’s federal conflicts are structural, reinforced by operational abuses.

Federalism: A Universal View:

1. Prior to scrutinizing the nature of the Indian constitution, it is exceedingly essential to appreciate the meaning and quintessence of Federalism.
2. Federalism is one of the most significant factors of modern constitutionalism.
3. It is established all over the world perhaps, as the only form of political organization suited to communities with diversified pattern of objectives, interests and traditions, who seek to join together in the pursuit of common objectives and interests and the cultivation of common tradition.
4. The basic objective of federalism is unity in diversity, devolution in authority and decentralization in administration.
5. The basic condition of federalism is plurality; its fundamental tendency is harmonization and its regulative principle is solidarity.
6. According to Daniel J. Elazara, – Federal system provides a so as to allow each to maintain its fundamental political integrity.
7. Federalism or Federal Structure is a complex governmental mechanism of a country which seeks to establish a balance between the forces working in favour of concentration of power in the centre and those urging a disposal of it in a number of units.
8. A federation is a political contrivance to reconcile national unity with state rights. Its originality lies in the fact that power at once is, concentrated as well as divided.

Way Forward: Key changes needed:

1. Federal theorist K.C. Wheare analyses India’s “centralized state with some federal features” as “quasi-federal”.
2. He underscores the structural fault lines of Indian federalism not simply as operational.
3. So, while many democratic distortions are amenable to mitigation by institutional professionalism, Indian federalism, to be democratically federal, needs institutional amendment despite being a “basic structure”.
4. There is no reason to believe that empowering our States would cause national disintegration.
5. Therefore, the powers of States vis-à-vis the Centre contained in the Lists has to be increased.
6. The role and composition of the Rajya Sabha, must be expanded. This would allow smaller States a kind of brake over national majoritarian politics that adversely impact them.
7. Serious thought must be given to breaking up the biggest States into smaller units that will not by themselves dominate the national conversation.

Conclusion:

The ability of the Indian Constitution to keep its wide-ranging diversity within one sovereign state, with a formal democratic framework is noteworthy.

However, it is a threat to national security by incubating regional cultural challenges to national sovereignty, and reciprocal repression.

We might learn from the mistakes of neighbouring Sri Lanka and Pakistan rather than be condemned to relive them.

Empirical and scholarly evidence suggest Wheare’s prefix about federalism arguably applies to other constitutional goals, while the federal flaws are structural, reinforcing conflicts and violence, endemic in the distorted democratic process.

India’s national security deserves a functional democratic federal alternative to its dysfunctional “quasi-federal” structure, which is neither federal nor democratic but a constitutional “basic structure”.