Stifling the states
Indian federalism has been in the news recently. The rejection of Republic Day floats designed by the governments of Tamil Nadu, Kerala, and West Bengal was seen as a symbolic attack on those states, which are ruled by parties other than the BJP. The current session of Parliament has moved the debate from symbol to substance, with several Opposition MPs vigorously attacking the Centre for undermining the rights of the states in violation of constitutional norms and principles.
The first major attack on Indian federalism was the dismissal of the Communist government in Kerala in 1959, through the invocation of Article 356 of the Constitution. Among the instigators of that move were the Congress president, Indira Gandhi, and the home minister, Govind Ballabh Pant. Yet, as the prime minister at the time, Jawaharlal Nehru cannot escape blame. This act remains a blot on Nehru’s democratic credentials.
In Nehru’s long tenure as prime minister, Article 356 was invoked eight times in all. After she became prime minister, Indira Gandhi used the provision much more frequently. By one calculation it was invoked a full fifty times in the two periods (1966 to 1977 and 1980 to 1984) that she served as prime minister, an average of slightly more than three times a year. Article 356 was used with abandon in two phases in particular — in 1970-71, after Mrs Gandhi split the Congress party and wanted to have her faction dominate state governments, and in 1980, after her return to power at the Centre, whereupon she dismissed several state governments which were ruled by parties other than hers.
The Indira Gandhi era in Indian politics ended in 1989, when her son, Rajiv Gandhi, lost an election as a serving prime minister. Now commenced what in retrospect seems the Golden Age of Indian federalism. The dismantling of the license-permit raj, and the citizenry’s wisdom in not handing a majority to any single party in a general election, led both to a surge in economic growth and the nurturing of a collaborative spirit in governance. An atmosphere of mutual respect flourished between the Centre and the states, with benefits all around.
However, with the Bharatiya Janata Party achieving a majority in the general elections of 2014 and 2019, Indian federalism has, once again, come under threat. In the seven-and-a-half years that Narendra Modi has been in office, Article 356 has been invoked eight times, or roughly once a year. When judged by this single criteria, Modi may be said to be more respectful of the rights of states than Indira Gandhi. Yet, in other ways, he has undermined and weakened Indian federalism far more than any previous prime minister. Let us enumerate them.
First, important policies are framed and major laws passed without consulting the states which have to implement them. This was most strikingly true of the (now withdrawn) farm laws, of course, but policies and laws relating to such vital subjects as education, co-operatives, banking and so on are decided beforehand by the Centre and then sought to be imposed on the states.
Second, although law and order is a state subject, the Modi government has done all it can to undermine the capacity and autonomy of state governments to enforce their writ in the territories under their legal jurisdiction. The free and almost reckless invocation of the Unlawful Activities (Prevention) Act to suppress political dissent (rather than to identify actual terrorists) and the sending of the National Investigation Agency (set up in the wake of the 2008 Mumbai attacks for a limited, and specific, purpose) into state after state are examples of how the Modi government seeks to centralize punitive powers in its hands.
The Covid-19 pandemic presented a great opportunity to bring the country together by consulting actively with the states. Instead, the Modi government has acted unilaterally from the start. It waited till a BJP government in Madhya Pradesh (itself a product of chicanery and coercion) was sworn into office before recognizing the epidemic as a pandemic. Then a lockdown was imposed by the prime minister at four hours’ notice, without consulting the states, indeed perhaps without consulting even the members of the Union cabinet.
Along with the lockdown, the National Disaster Management Act was invoked, again without any consultation with the states. Almost two years later, and despite all the boasts about the government’s conquest of the virus, the Act remains in place. Since it gives the Centre extraordinary powers to monitor the movement of people and goods, the Act may be in place for some time yet. Designed to handle specific disasters in a time-bound fashion, the NDMA has become in this government’s hands merely another tool to increase its powers over the states.
Third, the Modi government has used investigative agencies such as the Central Bureau of Investigation and the Enforcement Directorate to weaken and threaten parties and state governments opposed to it. There has been, for some time now, a meme circulating on social media, to the effect that any politician who crosses over from a party like the Shiv Sena, the Trinamul Congress, or the Nationalist Congress Party to join the BJP has undergone a ‘Ganga snan’, purifying him (and it is always a him) of any contamination by charges of corruption.
Fourth, in so systematically attacking state governments opposed to it, the Modi regime has sought to exact insidious loyalty tests from officers of the Indian Police Service and the Indian Administrative Service. The creator of the modern IAS and IPS, India’s first home minister, Vallabhbhai Patel, saw its officers as an efficient, effective, and vital bridge between Centre and State. They were, in Patel’s conception, always to take decisions keeping the Constitution in mind, rather than follow mala fide orders from politicians. On the other hand, the man who now sits in Patel’s chair, Amit Shah, demands personal and ideological obedience from his officers. IAS and IPS officers in important states which are not ruled by the BJP, such as West Bengal and Maharashtra, have been under pressure to declare their loyalty to the ruling regime at the Centre. This perversely partisan view of the public servant’s calling is antithetical to Centre-state relations, and to the idea of constitutional governance itself.
The Modi-Shah regime has also misused the office of the governor to weaken state governments ruled by Opposition parties. Again, this has been particularly manifest in West Bengal and Maharashtra, whose governors have worn their party affiliations on their sleeve in a manner unprecedented in the history of the Republic.
Fifth, the promotion, at vast expense and with enormous amounts of institutional energy, of a personality cult of the prime minister, also weakens the idea of India as a federal republic in which the states and the Centre are equal partners. The personalized branding with Narendra Modi’s photograph of schemes relating to education, health, social welfare and so on whose operational domain is in the states, reflects a deeply authoritarian mindset and a fear of sharing credit.
The cult of personality around the prime minister has also imposed an unacknowledged fiscal cost on the states. Consider in this regard the structure of the PM-Cares fund. Shrouded in secrecy and with a complete lack of public accountability, the fund is also a violation of the federal principle. Remarkably, while contributions by companies to the fund can be written off as tax breaks under the ‘Corporate Social Responsibility’ tag, this concession is withheld from those who may wish to contribute to the Chief Minister’s Relief Fund run by each state.
Finally, although as compared to Indira Gandhi, Narendra Modi may have used Article 356 relatively infrequently, to him belongs the signal honour of being the only prime minister to have actually abolished a legally constituted state of the Union. Goa, Arunachal, Nagaland, Manipur, Tripura and Himachal were Union territories which eventually became states. Jammu and Kashmir went the other way, when a legal sleight of hand (the governor claiming to represent the will of the people) was used to downgrade it from a state to two Union territories. An act of hubris and megalomania, with communal undertones, this was surely the most savage attack on the federal principle ever undertaken by a prime minister of India.
Outside of Jammu and Kashmir, however, Narendra Modi and Amit Shah have used instruments less blunt, and more diabolically subtle, than Article 356 to weaken the rights of states. And with conspicuous success too. Along with the co-option of the media, the destruction of our best public universities, the politicization of the armed forces, and the promotion of a majoritarian ethos, this multi-pronged attack on the federal structure of our Republic is one of the principal achievements of the New India.