The philosophical malaise in Ek Desh, Ek Vidhan and Ek Pradhan offers just cause for asymmetrical federalism in India

The Preamble of the Constitution of United States begins with the adage, “We the People of the United States, in order to form a more perfect Union establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

What is a “more perfect Union”? Can there be degrees of perfection? Does it look like a grammatical error or is it an elusive ideal the founding fathers of America deliberately included in their preamble so that it can be pursued.

With the emergence of nation states since the Peace of Westphalia, the world has always struggled with the question of what constitutes a nation (Ek Desh) and if there can be multiple nationalities within a country. Classically, all nation-states can be divided into — (a) a centralised system, where there is a strong center and ethno-provincial identities are secondary or; (b) a federal system, where these regional and sub-national units share power with the center to a very large extent. The rule of the thumb is that the more federal the structure, the more internal autonomy the sub-nationalities (e.g. Odias, Gujaratis) enjoy.

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Tum qatal karo ho ki karaamaat karo ho?

It was raining heavily in Mumbai on the morning of 5 August, 2019. A couple of my colleagues and I were waiting at Starbucks, Powai for the counterparties to arrive for a negotiation scheduled later in the day. The barista while serving our coffee mentioned excitedly, “Sir, Modiji has removed Article 370!”

Having done extensive work on Kashmir in the past I knew what the reference meant. However, since as they say that history often unfolds quite innocuously and boringly, I did not react to his statement much except for smiling unenthusiastically may be. Little did I know that I will be sucked into this history in the ensuing months (by then far from being innocuous or boring) and will be assisting the Supreme Court in deciding on the constitutionality of the abrogation of Article 370.

As we "celebrate" the first anniversary of the abrogation, we should never forget that it was achieved through a series of legal vaults or rather a legal conjuring of sorts. The action was swift, clinical, and was portrayed as a legally sound venture. This reminds me of an interesting anecdote, Prime Minister Indira Gandhi had declared a state of emergency in 1975. Several human rights were violated during this 21-month state of emergency. Opposition leaders were jailed and the press was ‘censured’ and ‘censored’. Under these circumstances, ironically a ceremony was held on August 15 at the Red Fort in New Delhi to celebrate “independence day”. The prime minister was present at the ceremony. Kaleem Aajez recited this sher, “daaman pe koii chhint na Khanjar pe koii daag, tum qatal karo ho ki karaamaat karo ho”.

Could they have done it during a state of Emergency? Who concurred to the abrogation if not the State Assembly? Powers of the Governor vis-à-vis the State? Probably, I cannot say anything which has not already been said, hence I will concentrate on the philosophical issues/malaise with the ruling dispensation’s argument for the abrogation.

Of Chak De India!

Growing up in India, it was hammered into our heads and our psyche to view our country as a monolith, as “one” nation. Diverse yes, but united first! Indians first, Biharis, Bengalis or Tamilians later. So much so that the brooding coach played by Shahrukh Khan in Chak De India proudly proclaimed, “Mujhe states ke naam na sunai dete hai na dikhai dete hai... sirf ek mulk ka naam sunai deta hai I-N-D-I-A”.

What is a nation though? Is it merely a contiguous piece of land? Is it uniformity of culture/language? Is a country synonymous with a nation?

Of Imagined Communities

Benedict Anderson in his seminal work on nationalism defined nations as “imagined communities”. It is imagined because the members of even the smallest nation will never know most of their fellow-members, meet them, or even hear of them, yet in the minds of each lives the image of their communion. Almost all other proponents of nationalism have identified some common features of a nation-(a) a common language; (b) shared history; (c) similar culture; (d) a shared enemy in some cases.

Every nationalistic project is about trying to cook up this imagination. Measuring with the troves of academic literature on the subject of what constitutes a nation, India is not and cannot be “one” nation. I, as an Odia, identify more with a Bangladeshi than I ever will identify with a Punjabi including in terms of the language we speak and the cultural nuances we practice. India at best is a ‘forged nation’, with various sub-ethnicities and sub-nations within, which has by and large successfully allowed these different competing sub-nationalities to rally around unifying constitutional principles.

A case for Asymmetric Federalism

According to William Riker, ‘federalism’ is an outcome of a rational bargain among various constituents. In the political bargain, the constituents give up political autonomy for security from external threats (like in the case of Kashmir). The economic bargain is to enable a common market and to ensure the optimal provision of public services by reaping economies of scale and catering to diverse preferences. However, while striking the bargain, the constituents try to preserve their valued identity and seek special status. The constituent units do not see themselves as part of the larger group only but also try and uphold their distinct cultural identities.

When political compromises take place to ensure that an independent unit is absorbed in the Union, asymmetric federalism [1] comes to the aid by ensuring certain things are ceded to the merging units so that their internal autonomy is maintained even after they have embraced the larger Union.

History has shown us that the lack of internal autonomy has always pushed countries towards irredentism or separatism.

From Printing Error to “Ek Naara, Ek Parcham” — Lessons from our Neighbours

One of the most humbling examples of my previous claim is our next-door neighbour, Pakistan.

Right from the birth of Pakistan, Bengalis and Punjabis formed the largest ethnic sub-groups and ruled over East Pakistan and West Pakistan respectively. The Punjabis, who held the largest businesses and were over-represented in the armed forces, often projected hegemonic behavior even though they were easily outnumbered by the Bengalis.

One of the most contested constitutional debates in Pakistan was whether Pakistan should have a federal constitution or a centralised one. Popularly known as the "one unit scheme", it involved a maneuver by the Punjabis to treat West Pakistan and East Pakistan as separate units without West Pakistan being divided into provinces of Sindh, Baluchistan, Khyber Pakhtunkhwa for the purposes of calculation of seats in the National Assembly of Pakistan so that Punjabis along with sub-ethnicities (Sindhis, Mohajirs, Balochis, Pathans et cetera) would be able to outnumber the Bengalis of the Eastern side.

Very few people know that it was rallying against this “one unit scheme” that pushed Mujibur Rehman into the national limelight and the demand of internal autonomy by East Pakistanis ultimately precipitated into the demand for a separate constitution and subsequently into the infamous Operation Searchlight which resulted in the severance of Pakistan and the historic declaration by Mrs Indira Gandhi on All India Radio that, “Dhaka is the now the free capital of a free country!”.

Though the Lahore Declaration of the Muslim League (one of the most important foundational documents of Pakistan) had clearly proclaimed that Pakistan will be a federal state, a little anecdote informs us that how that thinking changed later. According to Abul Mansur Ahmad (the poet-politician from present-day Bangladesh), sometime during the Partition, pointed out to Jinnah that the original Lahore resolution had mentioned parts (in plural) of Pakistan with the aim of creating a federal Pakistan.

To his utter dismay, Jinnah claimed that there was a “typing error” in the official copy of the resolution and they had always intended to have a centralised Pakistan! Now, the change in thinking was probably because of the fourth ingredient as I had pointed out earlier, the “common enemy”, i.e. India but the price Pakistan had to pay for denying internal autonomy is living history still unfolding in the form of a vibrant yet separate country.

Not only our neighbours, history is peppered with examples of how denying internal autonomy has resulted in secessionist movements around the world including-Quebec in Canada, Kosovo, Albania, Yugoslavia, and scores more. The old prophets have rightly said, “If you really love someone, give them space and set them free!”

Examples of Asymmetric Federalism

As I have argued that how ceding space and autonomy and preserving a certain amount of asymmetry is not a bad word after all. It acts as the safety valve for letting out secessionist pressures. Many matured democracies are in fact practicing both de jure and de facto asymmetric federalism to ensure unity (as opposed to what the ruling dispensation wants you to believe).

In Indonesia, for example, 5 of the 34 provinces have “special status”. Among the 5, Aceh has the most far-reaching autonomy. It has its own flag, crest, and hymn and retains its own sets of laws except laws relating to foreign and defence policy. Aceh has the right to retain 70 percent of the revenues from current and future hydrocarbon deposits and other natural resources in its territory and territorial seas and has special autonomy fund from the state budget and even it has the right to form local political parties (which is not the case in the rest of the country).

Malaysia is another case in point. The states of Sabah and Sarawak merged with the Malaysian Federation in 1963, under the Malaysia Agreement 1963, subsequently incorporated in the federal constitution. Under the agreement, these two states retained legislative, executive and some judicial power over matters that fall under federal authority other provinces of the country. Sabah and Sarawak also are entitled to control immigration into their states from other parts of Malaysia.

A third example comes from Timor-Leste, where Law No. 3/2014 created the Special Administrative Region of Oecusse (“SARO”) with a Special Zone of Social Market Economy. The Timorese Government is enabled to transfer substantial duties and powers over SARO’s economic development to the authority of the Special Zone, including powers to enact policies and regulations aimed at facilitating investment.

Now, one may think Kashmir’s case in India is sui generis in the Indian scheme at least that is what we are taught and brainwashed with. However, Kashmir is not the only state in India which has enjoyed asymmetric federal structure. Often forgotten are the examples of the Schedule VI states of Assam, Meghalaya, Tripura, and Mizoram.

The Constitution provides for “autonomous districts” in these states encompassing regions where indigenous tribes reside within such states the governance and the administration of these autonomous districts are carried out by distinct entities, called “District Councils” or “Regional Councils”. For example, the laws of inheritance, land transfer, marriage, contracts are governed by separate laws which stem from local tribal customs and which are made by the “District/Regional Councils” and not by the state legislature. Even the Indian Penal Code, 1860, is not applicable to the tribes living in the “District/Regional Councils” and even the power to impose tax are devolved to such councils with minimal state interference.

The framers of our Constitution accepted the policy of non-interference and internal self-determination (internal autonomy) in the region in order to protect the distinctiveness of the tribes and to preserve their cultural rights.

E pleribus Unum

The great seal of the United States proudly proclaims —“E pleribus Unum” (meaning ‘Out of the many, One’) encapsulating both a truth and a promise. The truth that federation of United States was made up of 13 constituent provinces originally (Out of the many), each distinct yet making coming together to make the Union (One) and the promise to keep it that way. Ceding special status is not necessarily a bad thing, as illustrations from around the world have shown, preserving autonomy fosters a “more perfect Union”. Unity does not necessarily mean uniformity.

The entire Kashmir policy of the Government of India, right from 1947, is that of misplaced intrigue. Trying to hammer something which is brittle into malleability.

Mian Ghalib’s sher fits well — “Zindagi har yahi galti karte rahe, dhul thi chehre pe aur aaina saaf karte rahe”.

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[1] is found in a federation or confederation in which different constituent states possess different powers: one or more of the substates has considerably more autonomy than the other substates, although they have the same constitutional status.