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Two revolutions of the 18th century have created the way governments exist today. French Revolution inspired the idea of Nation-State with monopoly sovereignty and American Revolution to materialize the idea of federal form of government with shared and popular negotiated divided sovereignty between and among the federal government and constituent units. Federalism is the mode of political association and organization that unites separate polities within a more comprehensive political system in such a way as to allow each to maintain its own fundamental political integrity. Political science has identified three basic ways in which polities come into existence: conquest, organic development and covenant. Direct manifestation of conquest is when a conqueror gains control of a land or people and in subsidiary way revolutionary conquest of an existing state, a coup d’état or conquering a market and organizing control through corporate means. This way of organizing a polity produces hierarchical structures of governance which are ruled in an authoritarian way.
Organic evolution of polities involves development from its beginning in families, tribes, and villages to larger polities. These polities tend to produce a single centre organized in one or several ways. The third type of polities are based on Covenant emphasize the deliberate coming together of humans as equals to establish self and shared rule. The polities founded by covenant are essentially federal in character. This paper analyses the historical development of Indian federalism and the innovations worked out by the founding fathers of Indian constitution and the developments after that which were necessary to maintain unity and integrity of the nation.
The development of federal polity in India has been a product of devolution of powers to the British provinces by the central government to ensure “provincial autonomy” under the Government of India Act, 1919 and 1935. It further evolved as part of the Cabinet Mission Plan and in final shape it emerged as a part of the present constitution. Though India’s democratic federal system is new, its pattern of socio-cultural federalism is age-old with distinctive heritage of rich diversity. In its latent form this socio-cultural federalism has not only survived, but has matured by the passage of time despite the vicissitudes of India’s political destiny. Developing from its embryonic form since the Vedic age, it continued to acquire new forms and substance in the ancient period (during the rise and fall of Mauryas, the Satavahanas, the Sakas, the Kushans, the Guptas, the Rashtrtakutas, the Chalukyas, the Cholas and the Pandyas etc.) and came to acquire distinct characteristics by the medieval times, in the span covered by the hegemony of the Delhi Sultanate, the Bahmanis of the Deccan and the Mughal Empire. The Mughal Subhas and Sarkars considerably coincided with socio-cultural identities. This normal and rational process of development of well-knit socio-cultural communities was only disrupted by the policy of annexation and arbitrary formations of sprawling provinces (like the original United Provinces of Agra and Oudh: a gigantic amalgamation of disparate regions) under the British colonial rule. Even in the hoary past, India’s federal socio-cultural pattern was recorded with amazing clarity in Puranas. Particularly Vishnu and Vayu-Purana throw light on the primordial mosaic of India’s socio-cultural diversity. Bharatvarsha (covering the territory today comprising India, Pakistan, Bangladesh and Afganistan) is repudiated to have in its fold 165 Janapadas, of which probably about 120 may be located within the confines of the present day Republic of India. These Janapadas were the territorial communities identified by an admixture of ethnicity, dialect, social customs, geographical location and political characteristic. Western writers on India, however, have tended, by and large, to picture India as a continent with a bewildering variety of races, creeds and languages incapable of being fused into a nation but Jawaharlal Nehru has rightly observed that “the diversity of India is tremendous; it is obvious; it lies on the surface and anybody can see it. What superficial observers from abroad have often found more difficult to perceive is the unity that underlies India’s variety. More careful observers have, of course, shown a commendable awareness of the fact that there is “an essential unity in diversity in the Indian peninsula regarded as a whole”.
India may be said have always possessed the natural “imperatives” of federalism. The structure of the Mauryan Empire- “a feudal-federal state’- provided the archetype of a federal polity. In Medieval period the Mughals attempted to create a centralized administration in India was partially successful but they wisely respected provincial feelings and interfered little in the day to day life of the Provinces. The British, started with marked Unitarian predilections but were compelled gradually to “federalize” the Centre-Province relations. Centralization, in short, was found to be “against the genius of the race’. During the British period, though in the beginning from Regulating Act of 1773 till Charter Act of 1833 there was policy of increasing centralization adopted by them but the new social and political factors reinforced the effects of the natural imperatives of federalism which were evident after the Mutiny of 1857 in the Indian Councils Act of 1892. This federalization was further developed in the subsequent acts and culminated in the Constitution of 1950. Several jurists, political scientists, public men have questioned the federal character of the Indian constitution and have sought to pin it such labels as “quasi-federal’, “fedro-unitary’, or “a decentralized federal state’, due to the wide endowment of authority vested in the Centre especially during the Proclamation of Emergency and the incompatibility of the Article 3 of the Constitution of India with the federal principle. Though the incompatibility of the Article 3 may be conceded but it is necessary to take into account the extraordinary circumstances in which a flexible procedure for the territorial reorganization of the states had to be incorporated in the constitution, however, the emergency power is not quite as unique a feature of the Indian federal system as it is made out to be Judicial interpretation of “war power” in the United States has given to the federal government there an amplitude of authority hardly less sweeping than the emergency powers of the Centre in India. There exist divergent views whether the Indian Federalism meet adequately the needs of national solidarity and economic development without rendering state autonomy nugatory, critics complain that the constitution has not worked according to the intentions of the framers and the powers of the Centre have been augmented to such an extent that India has virtually become a decentralized unitary state. They point out the impact of national planning which is alleged to have suppressed the federalism and to the growing dependencies of the States on the Centre.
Historical legacies are undoubtedly important in the shaping of any polity. Indian federalism is an outcome of its history and the way in which British unified the country under their rule and later the way in which the territories under the direct control of the British and various principalities were integrated in the Indian Union. Traumatized by the unprecedented horrors and dislocation of partition, the Constituent Assembly of India devised a system which seemed most suited to the needs of the time and requirements of a federal society. Owing to India’s multilingual, multiethnic, multicultural, socio-economic diversities and historical legacy, asymmetry in status and powers among states was reluctantly accepted by the founding fathers in the 1950 Constitution.
Indian Constitution started with the assumption of asymmetry in the special status accorded to Jammu and Kashmir in Article 370 and innovative constitutional arrangements for autonomous district councils for the tribal areas of Assam, Meghalaya, Tripura, and Mizoram under the Sixth Schedule, and tribal population of the nine other states under Fifth Schedule. But beginning with the Thirteenth Amendment, 1962, asymmetrical provisions were gradually added to the constitution mainly as clauses to Article 371 and term “Special Provision” was added to the title of part XXI of the Constitution which previously read “Temporary and Transitional Provisions”. Special Provisions with respect to the states of Maharashtra and Gujarat were added by the Constitution (Seventh Amendment) Act, 1956. Similarly Article 371A was inserted by the Constitution (13th Amendment) Act, 1962 to provide special provisions with respect to the state of Nagaland. Article 371B by the Constitution (22nd Amendment) Act, 1969 was included with respect to the State of Assam. Article 371C with respect to the State of Manipur was inserted by the Constitution (27th Amentment) Act, 1971. Article 371D and E was added with respect to the State of Andhra Predesh, by 32nd Amendment Act, 1973. Article 371F was added with respect to the State of Sikkim, by the Constitution (36th Amendment) Act, 1975. Article 371G was included with respect to the State of Mizoram, by 53rd Amendment Act, 1986 and Article 371H was inserted with respect of the State of Arunachal Pradesh, by 55th Amendment Act, 1986. Lastly special provision with respect to the State of Goa was added in the Constitution by the Constitution (56th Amendment) Act, 1987 under Article 371-I.
Article 371A which provides for special provisions for Nagaland allowing for non-applicability of acts of parliament to the state unless decided otherwise by the state legislative assembly in respect of religion or social practices of Nagas, Naga customary law and procedure and criminal justice involving decisions according to Naga customary law, and ownership and transfer of land and its resources. The Governor was also given special responsibilities with respect to law and order in the state and for the administration of Teunsang district. The Fourteenth Amendment, 1962, enabled the Union Territories of Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu, and Pondicherry to have Legislature and Council of Ministers on the same pattern as in some of the Part C States before 1956. In 1969, an autonomous state of Meghalaya was created within Assam comprising certain areas specified in the Sixth Schedule by the Twenty-Second Amendment by inserting Article 371 B, 244 A and l(A) in Article 275. The experiment was, however, short-lived; Meghalaya was made a full-fledged state in 1972. Another, even more short-lived, experiment began in 1974 when Sikkim was made an associate state by introducing a Tenth Schedule into the Constitution which detailed the terms and conditions of its association. In 1975, full statehood was granted to Sikkim by the Thirty-Sixth Amendment which also inserted certain special provisions for the state in the form of Article 371F.
Special provisions have also been made for Manipur in the form of Article 371 C inserted by the Twenty-Seventh Amendment, 1971, which provides for a committee in the Legislative Assembly to look after the interests of the hill areas of that state. Article 371 G looks after the special circumstances of Mizoram and was added by the Fifty-Third Amendment when it attained statehood in 1986.
These provisions together can be said to constitute a special status for the Northeastern states. However, in case of Andhra Pradesh also special provisions in the form of Articles 371D and 371E were introduced by the Thirty-Third Amendment, 1974, in order to solve the Andhra-Telengana issue. They provide for equitable distribution of (education and employment opportunities between the two regions. Article 371E provides for the establishment of a central university in Andhra Pradesh. The Constitution also provides for asymmetry below the state level (between districts or regions) through such provision as the Sixth Schedule (for North-Eastern states) and the Fifth Schedule for other states.
The Sixth Schedule of the Constitution of India made all the Hill Districts of erstwhile Assam autonomous with respective District Councils. Such autonomies were given to the tribal people of Assam in social, religious, cultural and economic fields. The tribal areas which were put under the Sixth Schedule were declared autonomous region and separate regional councils were provided for them.
The functioning of federalism in a country like India makes development of many asymmetrical features inevitable despite strong pressures for centralization and homogenization. However, recognition of asymmetry in many cases is not without problems. Asymmetry connotes an uneven distribution of power along a common axis. Federalism is to do with the institutionalization of particular arrangements, and asymmetric federalism is in essence a calibrated institutional response to the diversity of constituent units, permitting variations. While there was a unitary bias in the original design of the Indian federalism, a remarkable degree of flexibility and pragmatism has been worked into it. From the early days, in India there was marked absence of homogeneity among the federating units. For instance, the princely states had a separate political entity, and had little in common with the British provinces.
The people of North-East India, especially the tribal people, differ from the plains people of India in respect of culture, customary behavior, faith and race. Unprotected free interaction between plain and hill people has resulted into exploitative relationship structures between plain and hill peoples. The comparative backwardness, simplicity of the tribes invariably resulted into a relationship which was against their interests. On the demand of leaders of these tribal groups the colonial government brought different measures of protection for these people and their homeland. Different mechanisms were introduced by the colonial regime to control and regulate access and interaction of plain people to these areas to maintain peace and security and stability in these border regions. To keep them satisfied and pacified the extension of the institution of private property and uniform all India civil and criminal laws were made exceptional not routine as in the case of rest of India. Institutions of autonomous self government in the sphere of socio-cultural affairs were created which protected their traditional pattern of community ownership of land its resources and their customary laws.
In these conditions, the framers of the constitution had to bring about innovations to accommodate all the units of the federation. The framers of Indian constitution recognized the virtues of ’asymmetry” or asymmetric federalism in the context of bringing about and maintaining the union, particularly in integrating states and people who had enjoyed considerable amount of autonomy under the British. Thus we find in India there are as many as 10 States apart from Jammu and Kashmir out of 28 which enjoy some special privileges. No doubt there were political, economic and social compulsions in each case for granting special status; but it is a unique way of dealing with the problem. India is Union of States and the degree of unity within the country varies from state to state. The nature and scope of the two different types of special status is different not in contents but also in category. So to grant special status to a state within Union of India is not an exception rather a matter of policy in case of India based upon innovation and pragmatism.
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