The Telegraph
Tuesday , March 25 , 2014
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Two major issues have brought foreign policy formulation and implementation into the domain of public debate recently and flagged the question about the role of all stakeholders in the formulation of India’s foreign policy. Stakeholders in foreign policy today include a range of actors — from the traditional to the non-traditional. In the Indian context, there is the crucial role of state governments, business and industry organizations for economic issues, health and educational organizations, organizations concerned with connectivity, particularly transport and energy grids, non-governmental organizations and a host of other actors who impinge on foreign policy formulation.

Though the Central government in India is the driver of foreign policy, it could not sign the Teesta river water sharing treaty and the land boundary agreement with Bangladesh because the state government of West Bengal objected to their provisions. The second issue was the demand by the Tamil Nadu government that the prime minister of India boycott the Commonwealth summit in Sri Lanka in order to highlight the plight of Sri Lankan Tamils and to protest against the Sri Lankan government dragging its feet on the issue of autonomy for the Tamils in the northern and eastern provinces. The Indian prime minister’s decision not to attend the summit underlined the state government’s ability to influence policy on issues relating to external affairs.

In 1987, before the then prime minister, Rajiv Gandhi, decided to send Indian Air Force to airdrop food provisions to the beleaguered Tamils in Jaffna, he had the Tamil Nadu chief minister, M.G. Ramachandran, flown to Delhi for consultations. Details of this consultation perhaps still lie in the classified archives of the government. In case of the Ganga waters treaty with Bangladesh that lays down detailed water sharing-arrangements and monitoring, the Central government consulted closely with the West Bengal government and its then chief minister, Jyoti Basu. It is impossible to conceive that these two chief ministers, whose stature and political influence were considerable, could have objected to the Central government’s policy decisions in 1987 and 1996 respectively. It would be safe to assume that both stalwarts were fully on board with the Central government’s decisions.

India’s first prime minister, Jawaharlal Nehru, was prolific in sending letters to the chief ministers from 1947 to 1964. These have been published and are a source of great interest to scholars and others. The issues addressed in these letters were largely domestic but there were also many dealing with India’s external relations. It would perhaps be difficult to call these letters a manifestation of Union-state “consultation”, but they were, at the very least, an exercise in informing and educating the chief ministers about foreign affairs. There is no evidence to suggest that the chief ministers wrote back conveying their views on issues concerning foreign affairs discussed in these letters.

Arguments and counter-arguments against the Union government’s decisions to consult, or to defer to the wishes of the two state governments, have surfaced intermittently. The Indian Constitution has both federal and unitary features, though arguably it leans towards the creation of a strong Union. Relations between the Union and states have been reasonably well-defined in terms of consultation on legislation, administration and finance. The Union list has 99 items, the state list has 61 and the concurrent list has 52, insofar as legislative functions of the Parliament and legislative assemblies are concerned. The finance commission is one such instrumentality that recommends distribution of financial resources between the Union and the states.

There are further elements of cooperative federalism, namely, Article 263, which empowers the president to appoint an inter-state council. This council was first constituted in 1990 and is headed by the prime minister and includes six cabinet ministers and all chief ministers. It first met in 1996. It took six years for this council to meet and this gap, perhaps, indicates the lack of political will to make use of this institution. The States Reorganization Act of 1956 also envisaged zonal councils. The country was divided into six zones and included the chief minister and two cabinet ministers from each state, with the Union home minister presiding as chairperson of each zonal council. An additional North-eastern council was set up under the North-Eastern Council Act of 1971.

While the Constitution and subsequent legislation created institutions for regulating Union-state relations in matters that were purely domestic in nature, an evolutionary trend must be noted. This evolution has progressed from the belief that a strong Union was a sine qua non for a nation like India, given its diversity and the enormous problems of development and governance, to the belief that powers of governance must devolve more to its constituent units, that is, the states. The states reorganization commission had noted:“It is the Union of India which is the basis of our nationality… States are but limbs of the Union, and while we recognize that the limbs must be healthy and strong…it is the strength and stability of the Union and its capacity to develop and evolve that should be governing consideration of all changes in the country.”

The SRC was clearly arguing for maintaining the supremacy of the Union government. Pursuant to the government resolution of February 22, 2000, the national commission was set up to review the working of the Constitution. The terms of reference stated that the commission shall examine, in the light of the experience of the past 50 years, as to how best the Constitution can respond to the changing needs of an efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of parliamentary democracy, and to recommend changes, if any, that are required in the provisions of the Constitution without interfering with its basic structure or features. The commission submitted its report in two volumes to the government on March 31, 2002. The NCRWC took a more nuanced view of Union-state relations. It said: “The Commission feels that there is no dichotomy between a strong Union and strong States. Both are needed. The relationship between the Union and the States is a relationship between the whole body and its parts. For the body being healthy it is necessary that its parts are strong. It is felt that the real source of many of our problems is the tendency of centralization of powers and misuse of authority.”

The commission also observed: “The Constitution, based on the principle of federalism with a strong and indestructible Union, has a scheme of distribution of legislative powers designed to blend the imperatives of diversity with the drive of a common national endeavour. In this respect our constitutional theory, as well as practice, have kept pace with contemporary developments. The current trends emphasize cooperation and coordination, rather than demarcation of powers, between different levels of government. The basic theme is inter-dependence in orchestrating the balance between autonomy of the States and the inner logic of the Union.”

This evolution in thinking is also a function of the changing political scenario in India, wherein single party dominance has given way to coalitions. As a subject, foreign affairs is firmly embedded in the Union list and the Union government has exclusive authority over it. Thus Article 246(1) of the Constitution, read with Entry 14 of List I — Union list of the Seventh Schedule empowers Parliament to make laws with respect to: “Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”.

As per the provisions contained in Article 253, Parliament has the power —notwithstanding anything contained in Article 245 to 252 — to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. This article thus overrides the distribution of legislative powers provided for by Article 246, read with lists in the Seventh Schedule to the Constitution.

The NCRWC had recommended that for reducing tension between the Union and the states, and for expeditious decision-making on issues impacting on states, prior consultation by the Union government with the inter-state council may be considered before signing any treaty vitally affecting the interests of the states regarding matters in the state list.

Water, for example, is in the state list (Entry 17) as a primary entry but is explicitly made subject to the provisions of Entry 56 in the Union list, which enables the Union to deal with inter-state rivers if Parliament legislates for the purpose. The Parliament has not used this enabling provision. The Union ministry of water resources has long argued for moving water into the concurrent list but politics has always trumped this move because of opposition from states. Our Constitution-makers were sensitive to future demands of river-water sharing between states, though sharing of trans-national river waters was probably overlooked. It is noteworthy that sharing of the waters of the Indus basin was negotiated and the Indus Waters Treaty was signed in 1960 between India and Pakistan.

What about other more mature democracies with federal constitutions? The constitution of the United States of America does not say anything about “foreign policy”. It does, however, make it clear who is in charge of America’s official relationship with the rest of the world. Article II of the US constitution says that the president has the power to make treaties with other countries (with consent of the Senate), appoint ambassadors to other countries (with consent of the Senate) and receive ambassadors from other countries. Article II also establishes the president as commander-in-chief of the military, which gives the president a lot of control over how the US interacts with the world.

There is little doubt that state and local governments have an interest in protecting and serving local needs. Governments in some parts of the US have opened trade offices in foreign cities to promote business, trade and investment ties. State and local governments also lobby the federal government on specific foreign policy issues. American states with large agricultural communities closely track global negotiations on agriculture subsidies. Florida, for example, is often affected by political upheaval in the Caribbean, particularly in Cuba. State and local governments often reflect local concerns about laws which sanction (or forbid business with) some countries, an example being local laws passed by state governments that require divestment of holdings in apartheid-era South Africa and state assembly resolutions calling for the US to withdraw military forces from Iraq. So state and local governments can promote international trade, express opinions on foreign affairs, and even regulate their own interactions with other countries. But there are significant limits on how far they can influence or regulate US foreign policy. A US federal court ruling in 1998 said, “State interests, no matter how noble, do not trump the federal government's exclusive foreign affairs power.”

In countries like Canada, Australia and China, states have taken on economic diplomacy for quite some time and there are innumerable examples of state governments reaching out into the foreign domain for trade and investment promotion. Some countries have permitted its constituent states to open trade offices abroad. Such offices do not enjoy diplomatic immunities and privileges. In India, we permit such offices to be opened and treat them at par with offices opened by foreign corporate entities. There are many instances of India’s chief ministers travelling abroad to woo investors, though these forays are often alleged to be junkets.

Be that as it may, the core issue of how India’s polity can deal with the increasing federal imperatives in the formulation of its foreign policy is a hard nut to crack. But the time is ripe for thinking about more inclusive structures of foreign policy-making. One option is to make more frequent use of the inter-state council, with suitable readjustments of its management structure. For example, if issues of foreign policy have to discussed, then such agenda and discussion papers must be coordinated by the MEA. Many feel that the inter-state council is too unwieldy to have focused discussion on foreign policy issues and state governments are not equipped professionally to contribute substantially to discussion on foreign policy issues, except to see through the prism of local politics.

Perhaps a better option is to constitute a national-level foreign policy council headed by the prime minister. Such a council has to include the external affairs minister, the cabinet minister in charge of the subject (say water, defence and home), and chief minister of the state concerned, the national security adviser, the cabinet secretary and the foreign secretary. The council’s secretariat can be based in the MEA and should have an annual schedule of meetings and a provision for emergency meetings.

The Union government can consult and cooperate with states in the domain of foreign policy formulation but any federal polity is unlikely to give up the prerogative of being the final arbiter of a country’s foreign policy. It is, however, entirely feasible to institutionalize consultations between the Union and the states and not let it languish in a no-man’s land.