ONE of the main architects of the Indian constitution, Dr BR Ambedkar always strove to assert that the constitution he had toiled over was essentially federal in nature. Filing that the draft constitution be taken into consideration, on November 4, 1948, he declared: “The draft constitution is a federal constitution insofar as it establishes what can be called a dual policy. This dual policy under the proposed constitution will include union at the center and states at the periphery, each with sovereign powers to be exercised in the area assigned to them respectively by the constitution.

These sayings are aptly quoted at length to demonstrate how a constitution can be twisted and perverted despite the intentions of its drafters. Some perversions started early when Jawaharlal Nehru was Prime Minister. Dr Ambedkar was almost in tears a few years later when he told the Rajya Sabha that he was a hacker and reneged on the constitution.

In this he was totally unfair to himself and indeed to the text of the constitution. A British scholar of constitutional law considered early enough that India was a unitary constitution with federal features rather than a federal constitution with unitary features.

At present, under Prime Minister Narendra Modi, attacks against the few federal entities have increased. Indeed, the Hindutva parties, the Jan Sangh and its successor, the BJP, have never been satisfied with federalism. Because at the heart of the concept of federalism is the sharing of power.

The debate in India takes into account the build-up of union power, but not the refreshing new perspectives of the concept of “cooperative federalism”. This implies that the three levels of government of the country – union, provincial or state and municipal – cooperate in the national enterprise; each sticking to its own sphere delimited in the constitution. States that hate central rule happily walk the domain of municipalities and local councils, regardless of the law. As West Bengal Chief Minister Jyoti Basu discovered, memoranda demanding increased powers for states are one thing. But it is the union that controls the flow of funds to the states.

At the heart of the concept of federalism is the sharing of power.

The concept of cooperative federalism implies the obligation of all to cooperate in the nation-building exercise. As explained earlier, “Rather than pit the rights of the state against central power, the trend in the United States, Canada, Australia and Europe is towards sharing and cooperation in services and planning. While federal governments have undoubtedly increased their power at the expense of the state level, state governments have also acquired new functions ”. And “states and local agencies, in particular, have developed ways of participating in the planning and administration of many federal activities which at first glance seem to intervene so radically in their internal affairs.”

In Australia, for example, since 1982, states must be consulted in advance before the Commonwealth of Australia enters into a treaty with a foreign government that encroaches on their interests, although under the constitution business foreigners are exclusively a trade union subject.

In Canada, the provinces successfully united to gain greater powers without amending the constitution. It is politics that shapes how a constitution works. Another central control tool is All-India Services. The delegation of an officer belonging to this service is controlled by the center. Recently, the Modi government sought to punish West Bengal’s chief secretary for being five minutes late for a meeting with Prime Minister Modi. Kashmir has bitterly complained about the central control of the so-called Indian Services. They also include the Indian Police Service.

It is, however, in the intellectual domain that the delay is most damaging. There is an international body responsible for studying federalism. The progress made by its newspapers is unknown in India. We need to rethink. A federal constitution cannot be drawn up by political parties organized in unitary bodies.

All political parties are led by their party leaders at the very center. They award election tickets to candidates of the parties they choose. Party members have no say in the selection. It is the boss who will decide who will be the Prime Minister and even the composition of the cabinet. In short, a so-called democratic constitution is run by outrageously undemocratic political parties. It is the direct opposite of the situation in Britain, Germany, the United States and other democratic countries. This has an impact on the functioning of the constitution, in particular on the functioning of the governor and the president.

The writer is an author and lawyer based in Mumbai.

Posted in Dawn, le 12 June 2021



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