Uncooperative Federalism: A New Model for India’s Unity

ABSTRACT

The relationship between the Centre and provincial units has been a matter of debate since the development of the first federal written constitution in the United States of America. The type of constitution varies from unitary to federal constitutions having strong centralizing tendencies. The case of the Indian constitution can be classified as a rare phenomenon as it was made by taking inspiration from other countries’ experiences, and constitutions, resulting in the import of clauses having both unitary and federal features. This resulted in a wide variety of interpretations regarding the structure of government whether it was federal or unitary. A conclusive answer was given by the Supreme Court in the Kesavananda Bharati case in which federalism was included as a basic structure of the Constitution. However, “Pragmatic federalism”[1] term again gave a wide area for the development of different models on which Indian federalism can advance. This article aims to analyze the viability, effectivity, and applicability of uncooperative federalism, one such model, in Indian conditions, comparing it with other prevalent models while also simultaneously studying its applications in other countries.

INTRODUCTION

India, when it gained independence in 1947 and started its journey of creating an inclusive constitution, had a head start as previous attempts were already made during the freedom struggle which served as one of the founding pillars of the document, others being the Government of India act 1935 and constitutions of other countries. Dr. B.R. Ambedkar, the chairman of the drafting committee, said that if the Indian constitution is called a patchwork, then it can be called a “Beautiful patchwork”[2]. This intelligent and selective incorporation of clauses has provided some contrasting provisions related to the same features, giving an ample number of arguments on both sides of scholars. One of the much-contended features was India’s federal structure which remained a topic of discussion between scholars throughout the world. However, the federal structure has not remained a static, concrete concept but has grown, lived, and changed its appearance throughout the decades, thereby, creating its brand of federalism, the latest being of uncooperative federalism. The article focuses on understanding federalism from its historic roots, India’s sui generis case, and the benefits of implementing uncooperative federalism to the Indian condition.

FEDERALISM AND ITS HISTORICAL EVOLUTION IN INDIA

Federalism refers to a principle involving the separation of powers and functions between composite and regional units. Johannes Althusius along with Montesquieu is considered the father of modern federalism. Federalism, from its development, has been more of a functional doctrine rather than of a mere theoretical pursuit, making it adaptable to circumstances unique to every country that adopted it. Therefore, a straightjacket definition of federalism is not available. However, federalism could be understood by seeing its features in application, which it had acquired throughout its history.

KEY FEATURES OF FEDERALISM INCORPORATED IN INDIA ARE:  

• Division in power– The most important feature of federalism which separates it from the alternative of the unitary constitution is that there is a division of powers and responsibilities between the federal unit and its constituent units. This separation is usually guaranteed by a written constitution.
• Dual sovereignty – The constituent units don’t act as an agent of the central government but have their sphere of powers and functions provided by the constitution which, during normal conditions Union or Federal unit can’t encroach upon.
• Written constitution – A written constitution removes the scope of subjectivity and arbitrariness and since it is also difficult to amend, it provides stability to the already established division of powers.
• Independent judiciary – An independent judiciary acts as a guardian of the constitution and thereby, resists any unilateral action of any unit to change the distribution of power.
• Limited government – federalism presupposes a limited government as checks and balances prevent any unit from becoming too powerful to even endanger the sovereignty of the constitution.
• Sovereignty of constitution – A federal distribution of power will only come into existence when the sovereignty of the constitution exists to prevent the Union from reducing the constituent units to the position of an agent.

These features were incorporated by the framers of the Indian constitution too, giving it federal features, and providing arguments to jurists including Dr. B.R. Ambedkar who debated that the Indian constitution is federal. However, the Indian constitution didn’t restrict itself to the strict definition of federalism as it also incorporated clauses showing unitary features.

UNITARY FEATURES OF THE INDIAN CONSTITUTION ARE:

1. Single constitution India, we have a single constitution for both Union and state whereas more traditionally, the United States of America has a separate dual constitution for the federal and constituent units.
2. Unequal representation in the Upper house– In India, representation in the upper house is based on the population, and because of this it is not fixed. On the other hand, in the United States of America, every state has a fixed representation of two members.
3. Lack of territorial integrity of States– Article 3 and 4 which deals with the procedure of changing state’s boundaries explicitly mention that the boundaries of states can be changed even when the state doesn’t give assent to it. Thereby, states lack territorial integrity.
4. Emergency provisions– During the proclamation of emergency under article 352, the status of the constitution is unitary so as to deal with the threat with the reasoning that federalism can only be guaranteed when the constitution continues to exist.
5. Unified Judiciary– India has a unified judiciary system providing appellate jurisdiction to the Apex court.

These contrasting features led to different observations by different jurists notably at one end of the spectrum was K.C. Wheare, who termed India “quasi-federal” while at the other end, there was Sir Ivor Jennings, who termed India as a “Federation with strong tendency.” There were also some scholars such as W.H. Morris and Granville Austin who focused on the functional aspect and thereby, termed Indian Federalism as “Cooperative Federalism.”

SUPREME COURT’S VIEW ON INDIAN FEDERALISM

Initially, SC observed favored with view of Jennings, however, as the doctrine of basic structure developed, the idea of India’s brand of federalism developed. The apex court changed its focus from the theoretical to the functional aspect of Federalism and in subsequent cases termed it as “pragmatic federalism” or “cooperative federalism”, thereby eventually favoring the view held by Austin. However, with new ideas and experiences coming from the world, a new alternative to this is arising, known as Uncooperative federalism.

UNCOOPERATIVE FEDERALISM

The doctrine of uncooperative federalism is based on the principle of decentralization of decision-making powers to the constituent units, and states in Indian cases. The independent thoughts and use of dissent are at the heart of the doctrine. Uncooperative federalism advocates for the decentralization of the decision-making process and the changing of the policies based on the inputs from the states. While cooperative federalism treats states as supportive insiders in the form of allies and servants of the Union, giving little space for dissent and innovation and making the policy implementation a top-down process, Uncooperative Federalism, on the other hand, also adds a new dimension to it, where states can also act as a rival or a challenger forcing changes in the formulated policy, making federalism functionally applicable.[3]

PRINCIPLES OF UNCOOPERATIVE FEDERALISM

• Decentralization of decision-making power– Giving states the power to dissent will lead to decentralization of power, giving them the initiative to formulate policies according to their regional needs based on their own unique experiences.
• Financial empowerment– Uncooperative federalism calls for the financial empowerment of the states to provide them sufficient monetary strength to challenge the unilateral policymaking of the Union. If states are dependent on the Union for funds, a constructive dissent from the state, can’t be expected.
• Constructive Dissent– Dissent articulated should be constructive to provide necessary insights, lacking in the policy. The purpose should be developing inclusive policies, and introducing new ideologies at the national level, and not of using it for delaying the implementation of the policies useful for the public only for political vendetta.
• Development of more inclusive policies– States, when they have autonomy to decide and amend the policies can articulate the needs of the local people, in a better way, to whom they are connected at a more intimate level and can better understand their aspirations.
• Collaboration with dissent– Collaboration with the Union on common issues and at common grounds is encouraged to remove any feeling of servitude in the minds of the state.

BENEFITS OF UNCOOPERATIVE FEDERALISM

• Bottom-up approach to policy formulation– States are better equipped with knowledge about the local situations, and aspirations of the locals as well as the demography. They can make policies that are acceptable to the general population while Union would be there to supervise it. These regionally developed policies can also work as a model for other similarly placed states.
• Regional innovations– The specialized policies developed by states with regional outcomes can work as an experiment model for a particular policy and its targeted outcomes can be measured and if found scalable, can be implemented nationwide.
• Reducing regional disparities– By providing autonomy, regional disparities can be removed as a one-size-fits-all approach falls short of removing them due to the disparity between expected outcomes and actual results.
• Responsive Governance– States can easily adapt their policies to ever-changing local conditions without waiting for the Centre’s approval. This would provide speedy solutions to the problems not accounted for while the policy was formulated.

ISSUES DURING ITS IMPLEMENTATION

• Change in Administrative machinery– The current administrative machinery is highly centralized with All India services at its head giving very little scope for states to influence and direct the states. Initially, this centralization was needed to integrate the nation, however, slowly it became one more avenue to control the states. More power should be given to states to manage these services.
• Dissent for political vendettas– States ruled by the opposition can easily use the autonomy for political vendettas rather than on the merits of the policy leading to needless delays in policy implementation. To avoid this, an active role of both the judiciary and the public is needed to keep the political representatives constructive in their dissent.
• Public perception– Lack of political sensitivity towards the policies and their outcomes can easily lead the masses to mistake a constructive dissent as a nuisance or worthless delay. Educating the masses coupled with sensitizing the political representatives will be needed for the smooth application of the principle.

EXPERIENCES FROM OTHER COUNTRIES

The most admirable implementation of uncooperative federalism comes from none other than the United States of America, where a glimpse of how states working in the interstices of a nationwide regime can engage in dissent was shown during the passing of Civil Disobedience: Patriot Act where state officials self-consciously tried to build a real-world example of their contrary vision to generate a broader conversation about the direction of federal policy. They leveraged their position as insiders -members of an integrated state-federal scheme-to advocate an outsider’s view, depicting that it’s time to accept and adapt according to the dissent.

CONCLUSION­

Summing it up, the traditional view of uncooperative federalism as a roadblock to development should be changed and a careful study of its merits and demerits should be encouraged to inculcate the merits of dissent propagated by it according to the Indian situation to foster innovation and development coupled inclusiveness. The article concurs with the view of the Supreme Court that “Federalism can also be uncooperative” and tries to advocate the synergy between cooperative federalism and its rival doctrine to justify the proposition that Indian federalism is a case of sui generis[4].

Reference(s):

[1] S.R. Bommai vs Union Of India 1994 AIR 1918, 1994 SCC (3) 1

[2] Dr. ANANT N. KALSE, SALIENT FEATURES OF THE

CONSTITUTION OF INDIA,2017

[3] Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L. J. 1256 (2009).

[4] Alexandrowicz,” Constitutional Development in India ”,1957