Constitutional challenges of federalism

Updated: Jan 28 2005, 05:30am hrs
We have completed 55 years as a republic and this is a good time to introspect. With great expectation, the members of the Constituent Assembly adopted the Constitution on November 26, 1949, and the new republic came into existence on January 26, 1950. It was an extraordinary occasion.

The United States was the first republic in the modern world. With the Declaration of Independence in 1776, the American colonies rejected British rule. In the ensuing War of Independence, the American forces won. But the task of uniting the 13 independent states remained unfinished. In 1787, the Continental Congress met to deliberate on the future Constitution. Two viewpoints prevailed. The Republicans favoured popular sovereignty and supremacy of the states. The Federalists favoured a strong federal government. A compromise was made and the Constitution approved in 1789. The American Constitution was the first written one.

The early years of the republic were turbulent. For nearly a decade, the Republican group, led by Jefferson and Madison, and the Federalist faction, led by Hamilton and Adams, were at loggerheads, and the issue of slavery was deliberately kept aside to win the support of the southern states.

Finally, the Republicans vanquished the Federalists in the 1800 elections in which Jefferson was elected President. The Republicans embraced the Federalist ideology in part, even as the states rights were protected. The issue of slavery was not resolved until the civil war in the 1860s. But the promise of true liberty was denied to women and Blacks for many more decades. Women obtained the right to vote in the 1920s. While Black males got the right to vote after the civil war, it became real for the Afro-Americans in the south only in the 1960s, after the civil rights movement. The promise took over 180 years to be fulfilled.

The Indian Constitution is radical and revolutionary in comparison. At one stroke, all citizens got the right to vote. In a display of idealism, and faith in our people, our freedom fighters embarked on universal adult franchise, and embraced the republican principle. The new Constitution was not approved by the Governor General, the notional head of state. By deliberate decision, it was signed by the members of the Constituent Assembly. As the preamble declares, We, the People, have given unto ourselves the Constitution.

The Constituent Assembly, and the drafting committee under Babasaheb Ambedkars visionary chairmanship, gave a remarkable document of self-governance. And the indomitable Sardar Patel integrated over 500 princely states into the Indian Union. With the exception of Hyderabad, not a bullet was fired. Given our history, there was no serious debate about the rights of states. The Congress had visualised a decentralised, state-centred republic. But in the partitions aftermath, fears of fragmentation compelled the creation of a strong Union in a quasi-federal state.

The promise of American Declaration of Independence was fulfilled slowly
The Indian Constitution is radical and revolutionary in comparison
Our democratic system is resilient and capable of addressing our crisis
Our quasi-federal democracy has evolved over time into a federal system. It took decades of debate and struggle. And it happened through a combination of three factors. Article 356 is almost a dead letter after the Supreme Court verdict in Bommai case. The Unions discretion to extend patronage through public sector investment has all but disappeared, thanks to liberalisation. And the compulsions of coalition governments made it impossible to ride roughshod over the states.

Moreover, fair fiscal devolution has put our federalism on sound footing. The practice of treating Union tax revenues as a divisible pool and earmarking a share to states has strengthened them. The Union transfers over 42% of all tax resources to states through the Finance Commission, Planning Commission, and centrally sponsored schemes. With recent initiatives in employment, health and education, it is likely that these transfers will touch 50% a remarkable accomplishment.

However, the Unions ability to influence events in states has been reduced excessively. It has no automatic jurisdiction over criminal offences that affect public order or national security. Inter-state trade faces several barriers. The Union armed forces could not intervene to eliminate Veerappan, and the menace continued over two decades. States like Bihar are practically in the medieval era, with organised crime as a growing industry. Politics, violence and crime are inextricably intertwined in many states. Leftwing extremism has taken hold of large regions. In these cases, the Union is helpless. It is paradoxical that the Union has greater influence on events in Nepal, Maldives or Sri Lanka!

We must re-examine these challenges and find viable constitutional mechanisms to address them. Or else, growing regional disparities and lawlessness will pose huge dangers to our economy and national security. Much is wrong with our democracy and politics. Even the working of the Constitution needs to be altered in parts. The fact that we have a hundred amendments shows that we adopted the document in excessive detail. We must also recognise that we have a noble and humane Constitution, which has, mostly, worked satisfactorily. And we have a democratic system, which is resilient and capable of addressing our crisis.

We need to recognise that true transformation is possible only through our efforts. Meanwhile, let us celebrate our Constitution and democracy, which give us the sovereignty, space and opportunity to rejuvenate our republic. If we work sensibly, we can transform our institutions of state, politics and governance before celebrating the republics 60th anniversary. A great opportunity beckons us.

The writer is the coordinator of Lok Satta movement, and Janadesh, the National Campaign for Political Reforms