Why India needs both more and less of Article 370

March 3, 2020

As of 2020, constitutional democracy in India has taken a less recounted journey, one towards a more imperial Centre and less autonomous states. Democratically elected state governments have been dismissed, States have been demoted to Union Territories, independent constitutional bodies have been subjugated and now the most existential test of all that faces the peoples of India is one of citizenship!

 

Over the decades, separation of powers between the Centre and the States has been skewed with the Centre appropriating undue hegemony. The only instrument of counter against this has been elections. While it yields tactical aversion, it fails to repair the root cause. After all, elections displace the incumbent hegemon and empanel another. A retrospective Constitutional report card of India, then, in summary would be that the Union runs rogue over states and the law.

 

The Union, literally means, the act of joining together of parts and pieces. Parts and pieces must exist in some autonomous fashion, for the Union to even form. Continuing autonomy would allow for balance of power between the Union and the States, – a feat incumbent upon States’ Constitutions.

 

The Indian Union unfortunately did not have its States framing their own Constitutions; an exercise that would have achieved two irrefutable objectives. First, signaling the transition from vassal states, run by feudal laws enshrining hierarchy, patronage and dependence on the Centre, to forms of a republican democracy. Second, in formalizing the contract, the states have voluntarily and on mutually acceptable terms joined the Union. This inviolable contract extinguishes any notions of hegemony by the Centre by asserting that power flows from people to state; then from States to the Centre and not vice versa. The Indian Union could impose preconditions for enjoining States, ensuring an integrated, defensible, centrally administrable nation that least interferes in states’ affairs.

 

This was historically omitted for reasons of insecurity over disintegration, and the gargantuan burden of integration of several hundreds of princely states, despite considering the much sounder US precedent. This was a historical blunder; one that has penalised the diverse peoples in the states of India. Instead, India is a fundamentally asymmetric Union where some states like Arunachal or Mizoram have an Inner Line Permit regulating entry of other Indians, Nagaland has its own electoral laws where women cannot contest; Goa has its own civil code while others like Jammu and Kashmir have had their autonomy razed! Indeed, the Union of India has repeatedly railroaded States with the infamous abuse of the “dead letter” of Article 356, dismissing duly elected state governments.

 

India is arguably one of the most naturally federal countries on the planet with its diversity of history, plurality of people, languages and cultures, types of ancient and relatively modern regimes. Some states have a long history of invasions, while others do not. Tamil Nadu for instance, has barely been occupied as the rest of India up until the British. Kerala, not even that. Many of the North Eastern states have had their own independent historical paths.

 

The Indian republic is a construct engineered by a war against colonialism. When a natural federal order of sub-nations overthrows hegemony but is disrespected by political integration, struggles persist. This nation-state is sub optimal for various people in it. The penalty of this omission is evident in the extreme violence in some states for the past seven decades over autonomy such as Kashmir, Punjab, Assam, many states in the North East and naxal affected areas of Central India.

 

The way to prevent colonization of states is not just through tactical elections or a one-off contract, but a Constitutional framework for States. Autonomous states alone can ensure a citizenship test in a state that wants one, like Assam, while warding off any such in most of India, unaffected by large scale migration. To set this in motion, States must renegotiate or devise terms of contract with the Union in the interest of their own people. How this is done and that it is done with the consent of people of the state is paramount. If the peoples of a particular territory want a lesser state or a mightier one, so be it; but it should be firmly their choice. It must not be the choice of the Centre to decide the powers that people want to vest in their own state, so long as it is within the federal framework. Fundamentally, people should be able to choose their terms of contract on an equal footing with the Centre. One such contract is Article 370 of the constitution which was done in the instance of Jammu and Kashmir but other states negotiate may be a fresh version that accomplishes supremacy of people and jurisdiction of states versus the union, within the ambit of one country.

 

In summary, states must be able to frame their own constitutions. States need to have well defined contracts with the Indian Union. The contract must be framed in a manner that protects the interests of the people of the state, within the ambit of the Indian Union, for that is not the Centre’s jurisdiction nor priority. The outcome of a State-Centre dialogue should be negotiated, formal agreements that bound the Centre’s unauthorized interventions in States and secure the supremacy of people while firmly ensconcing it within a defensible and administrable Indian Union.

 

This blog is authored by Tara Krishnaswamy. She is the co-founder of Political Shakti movement and CitizensforBengaluru. She has keen interest in issues concerning gender, urban governance, federalism and politics.