By Neera Kuckreja Sohoni
Federalism refers to a form of government that is based on a relationship of parity and a constitutionally defined division of powers between two levels of government of equal status. Political thinkers view it as the best system for integrating diverse fiercely autonomous political, ethnic, class, religious, socio-cultural and other groups with competing interests, all of whom may have cause to fear control by an overly powerful center.
America’s 13 colonies deeming themselves as free independent nations opted for the federal form of government precisely to retain their parity vis-à-vis each other and with the federal government. India’s several hundred kingdoms and competing political entities and interests were similarly inspired (in some cases coerced) to do the same. Both countries formulated and adopted a constitution that demarcates powers between the central or federal government and the governments of the constituent states.
In recent years, federalism seems to be under fire as the center and states in both countries are increasingly inclined to test the limits of their powers. Once formed, the evolution of federal nations suggests a gradual movement of power from the component states to the centre. Federal governments tend to acquire additional powers, mostly in response to unforeseen situations and emergencies.
Such appropriation of new powers by a federal government can occur through formal constitutional amendment or simply through a broadening of courts’ interpretation of a government’s existing constitutional powers or by federal agencies through their regulatory powers. The federal government in the US, for instance, chronically uses carrots and sticks to beat their counterparts in the states to fall in line with the federal mandated policies and programs. This leads to inevitable clashes and lawsuits challenging the validity of federal or state decisions and actions.
A most recent clash is seen in the Texas Governor deciding to build the wall on his state’s southern border in order to prevent illegal immigrants from entering or inhabiting his state. The Covid pandemic, and the risk of infection from unvaccinated or untested Covid infected immigrants, has enhanced the pressure on Governor Greg Abbott to keep them out, especially against President Biden’s failure to address the problem. With foreign relations and border security defined as strictly federal powers, whether the Texas Governor can ban, prevent or eject foreigners from illegally entering his state is a burning constitutional issue all set to be heard and settled by the highest court in America.
The pandemic has highlighted other disputed areas of delegation of powers, muddling the so far believed to be clear-cut constitutional boundaries between state and federal authority. As a result of political decisions by both state and federal elected officials on public health protection and reopening of economy including issues such as mask wearing, social distancing and socializing, participation in psychologically vital societal activities such as weddings, restaurants, sports, athletics, religious, and cultural entertainment gatherings, intra- and inter-state travel by land, sea or air, in each arena, state legislatures and governors are testing their authority vis-à-vis each other while also challenging the federal government’s exercise of power. Presidents such as Biden and Governors such as Newsom and Cuomo have assumed unprecedented rule-making power which directly contravenes the constitutionally provided authority to legislatures to do so.
In other cases, such as electoral laws, the US Congress is laying claim to regulatory power that normally rests with state legislatures and designated authorities. With renewal of threats to expand and pack the Supreme Court, even the judiciary’s autonomy is at stake. No wonder today’s American government looks different than originally contemplated by the nation’s founders.
In India, federal-state tensions are on the rise with the most dramatic exhibition of federal power over a state when the Modi Government in 2019 managed to successfully repeal Article 370 of the Indian Constitution that assigned special status to the state of Jammu and Kashmir and passed the J&K Reorganization Act, which dissolved the state and reorganized it into two separate union territories of Jammu and Kashmir. That political outrage storm had barely settled when Covid hit India enabling the Modi Government to appropriate several regulatory powers over national and state economic and public health policies. Enacted by the Modi Government are highly controversial laws such as those regulating citizenship and agriculture, which have added to the centre-state tension in India.
Testing the stability of Indian federation, a serious clash of wills occurred most recently between PM Modi and West Bengal’s Chief Minister Mamata Banerjee reportedly over the tenure of a civil servant who was serving as Chief Secretary of the state. He was due to retire but Modi extended his service by three months to ensure continuity in COVID control in the state. Such extensions are not unusual. A few days later with a terrible cyclone ravaging Odisha and West Bengal, Modi undertook an aerial survey during which period security regulation prevented Mamata’s helicopter from entering the aerial space. She therefore was not only unable to meet the PM on his arrival at a local airport, but showed up late at the meeting to discuss cyclone related needs with him. Those two failures were played up by vested interests as her rebuff to Modi. Worse, rather than engaging in a calm and cordial discussion, she reportedly declined to sit down, handed over a damage report to the PM, said a few words and presumably left to fly to another disaster location with her Chief Secretary tagging along.
Reportedly, while the PM did not overtly object, fury’s floodgates opened soon enough resulting in an immediate announcement of the Chief Secretary’s transfer to Delhi, on his very last day of service. Mamata retaliated by refusing to release the civil servant, an authority which Modi had similarly exercised as Gujarat’s Chief Minister! Declining the 90 days’ extension of service given by the Centre, Mamata awarded the civil servant a three-year post-retirement term as her ‘Adviser’.
The Centre responded by issuing a notice under Section 51 of the Disaster Management Act on the civil servant for “refusing to comply with the direction given by or on behalf of the Central Government”. The provision authorizes up to two years imprisonment of offenders. The step, while legal, is unprecedented and worse, it opens the floodgates for manipulation of civil servants out of spite. Observers are eager to see whether the firebrand Mamata will use the same power to imprison a central government official as part of her vendetta.
The petty incident has incendiary potential with Mamata already moving to call for an end to Modi’s regime for his many failings including undermining state autonomy on farming, public health, covid handling, and other administrative issues.
According to a retired civil servant, “The interesting question we have now is whether the Center expects IAS officers to defy the state government. The matter will soon move to the courts and the federal Constitution looks forward eagerly to a direction. Should officers serving states continue to be loyal to them? Or is it now legitimate for them to undercut the latter – whenever Delhi gets miffed with a chief minister? That is the crux of this battle.”
But the battle’s implications are surely widespread and grimmer. As skeptics of federalism have always believed and its doomsayers have predicted, increased regional autonomy or enhanced federal aggression are equally likely to lead to secession or dissolution of the federal nation.
Whether in the US or India, as the Constitution’s federal characteristics are being increasingly and constantly tested, the battling parties are called upon to ace those tests.
Failure is not an option as it could well mean a collapse of the Indian, or for that matter the American, state and nation as we know it.
The California based writer frequently contributes opeds and essays to The South Asian Times.Read More