Locating Art 35 A in federal discourse

By Manik Raj. Dated: 9/10/2018 2:57:48 PM

Federalism was devised to handle the problems of diversity. Beneath the debate lies a contradiction between forces of uniformity and diversity

The wedge between centre and the valley has been filled with distrust in over seven decades. The issues of the supposed victims of Article 35A - the West Pakistan refugees, women, the Valmikis, the SCs and OBCs- could have been resolved within the state's constitution, if this distrust was recovered in time. It is late today. It is the politics of regionalism which has taken the front stage in today's political discourse. The successive governments at the centre inspired by the forces of 'uniformity' have not respected autonomy and asymmetric federal design with respect to J&K.

Most opinions in the newspapers on Art 35A have delved in various dimensions except its theoretical and constitutional origin and a comparison with other countries having similar constitutional provisions. This brings us to the origin and making of a modern nation-state and its prudent politics of accommodating and addressing the question of diversity. Modern State has four basic constituents' i.e. territory, population, sovereignty and government. Often, these four constituents have been challenged and come in conflict with diverse identities. Whereas 'State' is a political entity to control a socio-cultural and psychological construct called - 'nation'. This State has to deal with various diverse identities like language, region, religion, race, caste etc for its legitimate existence. Thus Constitution became an instrument to deal with these diverse identities. Therefore to reconcile the conflict and to accommodate diverse identities within a territory, federalism became a constituent part of constitution to serve the purpose. In this way the State exercises sovereign power over its constituent units. Today many modern Nation-States are federal polities.
The philosophical foundation of the federal polities, as a model of governance, is premised on two historical principles. Firstly, a government is best when it governs the least. Therefore only limited functions are assigned to the central or federal government. Secondly, a government is best when it is able to bring social transformation. Hence an overwhelming authority should be kept with the central or federal government. Almost every country, in the present world, either follows these two principles or lies somewhere in between the two. Beneath the debate between these two historical principles lies the contradiction between uniformity and diversity, freedom and unfreedom, of centralisation and decentralisation, of autonomy and centralism, and of self-governance and subjection.
Unlike Canada and India, Americans consciously instituted federalism as a 'concept' based on the first principle. The framers of the American constitution were aware of the risks associated with power accumulation in the hands of federal government therefore they respected and recognised the rights of the constituent states. Today America i.e. USA is composed of fifty linguistically, ethnically and religiously diverse states, each having its own citizenship and a separate constitution. The residuary power resides with the states with equal representation in the upper house i.e. the senate. The federal government cannot intervene in states' affairs unless a request is made by the concerned state e.g. during an internal violence or changing of the territory. Hence America established a federal political system independently.
Whereas Canada and India took one of these principles e.g. the distribution of power and establish federations. They inserted federalism as an 'instrument' based on the second principle. They grafted this principle on an already existing political system, the parliamentary form of government which they inherited from the British. There is no clear separation of power between the parliament, executive and judiciary. The parliament, more specifically the cabinet, has a clear dominating position. Despite the distribution of power the government and parliament in Ottawa and Delhi controls and dictate terms. Unequal representation in upper house and low judicial activism also represents weak federal features in these countries. The forces of uniformity and centralisation maintained their dominance and flourished in this framework. However, both the countries have given an unequal treatment to their states, also called as 'asymmetric federalism'. In simple terms, asymmetrical federalism means a flexible type of union that grants special status to some federative units in the Constitution. Quebec in Canada, J&K and some north-eastern states in India, Catalonia and Basque in Spain are some of its classical examples. All these states share a common background of having demand for national self-determination. Today these states are part of their countries only because of asymmetrical design of their constitution expressed in the form of autonomy or special status.
For example Spain was formed with the union of kingdoms. However in 1978 fourteen regions recognised a system of provisional autonomy- also called 'autonomous communities'. Catalonia and Basque countries are two communities (communities/ provinces represent states in Spain) witnessed popular secessionist/national movement in past which was later negotiated though 'statutes of autonomy'. A statute of autonomy is an agreement executed between Spain and these two communities for greater autonomy. Still the distribution of power is more inclined towards the centre but significant powers in areas such as education, health, urbanism local government, public safety and the environment are vested with the autonomous communities. In Spain the autonomous communities also administer a significant portion i.e. 40 percent of total public spending.
Similarly, Tyrol is a province in western Austria, has similar, even much harder provision as mentioned in Article 35A. Apart from other provisions, if a Tyrolian live outside for a "long time" he is barred from buying any property or business in Tyrol and has to first return and spent five years in the province to again become eligible to get the rights.
The India experience
The Indian federal design emerged from the 'trauma of partition and a fear of further division. Therefore federalism became a subsidiary of the logic of national integration. Owing to peculiar historical circumstances, the consensus that emerged in the Constituent Assembly was in favour of a union with a strong centre. The forces of uniformity captured the centre stage. The preamble declared India as a 'union of state' and 'Federalism' was nowhere mentioned in the constitution. However, diversity was an un-compromising material reality. It started asserting itself in various forms immediately after the independence, for instance the linguistic reorganisation of the states in 1954. The constitution makers had to recognise the diversity and incorporated various federal features in the constitution. Hence there is quantum of states enjoying asymmetrical federal arrangements. At present eleven states in India- Article 370-Jammu and Kashmir, 371A- Nagaland, 371B-Assam, 371C-Manipur, 371D-Andhra Pradesh, 371F-Sikkim, 371G-Mizoram, 371H- Arunachal Pradesh, 371I-Goa, and 371J-Karnataka, have been accorded special status. Hence, it was struggle between the forces of uniformity and diversity which built today's India. And, the struggle is still going on.
The background of this design was already set during partition of India. It was result of the prudent politics in the aftermath of 1947 for acceding diverse states to form a union of India. More precisely the circumstances and diversity defined the asymmetries to be a part of constitution of India. In India the diversity mainly constitutes linguistic, regional, religious, caste, tribal. Basically the asymmetric federal design of Indian constitution was directed mainly by this diversity. E.g. the linguistic identity dominated the southern region, the central and north-eastern region by tribe and the northern by caste etc.
The state of Jammu and Kashmir is also geographically, culturally, racially, linguistically and ethnically not a homogenous entity. The unique circumstances under which the state acceded to the union of India resulted in 'special status' to the state. Surpassing the religious identity, J&K joined Hindu majority India, to some extent because of the special status accorded to it. It was negotiated in the instrument of accession that except defence, external affairs, communication and ancillary all other matters shall be under complete prerogative of state of J&K. The forces of uniformity again gathered at the centre stage and unfortunately in over 70 years, 94 out of 97 entries of the union list have been extended to J&K which was not part of the Accession deal. This has been done by compromising democratic institutions and repressive techniques.
The wedge between centre and the valley has been filled with distrust in over seven decades. The issues of the supposed victims of Article 35A - the West Pakistan refugees, women, the Valmikis, the SCs and OBCs- could have been resolved within the state's constitution, if this distrust was recovered in time. It is late today. It is the politics of regionalism which has taken the front stage in today's political discourse. The successive governments at the centre inspired by the forces of 'uniformity' have not respected autonomy and asymmetric federal design with respect to J&K.
The unrest in Kashmir could have been avoided by learning lessons from America, Austria, Spain, Switzerland and other countries having strong federal features. Tillp today, the constitution of J&K is a democratic document which can accommodate diverse groups who are deprived of their rights and privileges e.g. the West Pakistan refugees and others. For that the forces of regionalism within and outside Kashmir need to restrain themselves and stop playing their cards on agony and plights of the deprived.
*(Manik Raj is a Research scholar, Department of public policy and public administration, Central University of Jammu and can be reached at manrajin10@gmail.com)

 

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