ISSN 2455-4782

THE PARADOX OF INDIAN FEDERALISM

Authored by: Dhruv Kaushik*

* PG Diploma Student at Indian Law Institute, New Delhi ______

ABSTRACT

The following paper aims to understand the nature and complexities of as a federal state in relation to various conflicts that have cropped up since independence. The philosophical analysis of several concepts like Federalism and the Nation-State will be done in prologue to the case studies of conflicts. A brief historical understanding of the constitution and state formation of India in context of the post-colonial era will be done to fully understand the nature of the federal structure of India. The most critical part of the paper would be the varied center- state conflicts that India has seen since independence in which we shall examine their nature, causes and their conclusion and try to understand the impact they had on the federal structure of India. The question about whether India is loosely or well-knit federation by examining various center-state conflicts.

Keywords: Federalism; Constitution of India; Federal Structure; Post-Colonial Era

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INTRODUCTION

The core theme of this paper is ‘Federalism’ and it would be befitting to begin with a basic understanding of what ‘Federalism’ is. The term ‘Federalism’ is derived from the Latin word ‘Foedus’ which literally means ‘agreement’ or ‘treaty’. This etymology takes us back to the unification of American states which in the modern context is the first structural federation that came into existence along the lines of which today’s federal states are mostly organized. Many philosophers like Locke, Hobbes, Hume and Montesquieu etc. attempted to explain the idea of ‘federations’ from a classical viewpoint. For this paper we would dive deeper into the modern understanding of Federalism.

K. C. Wheare, on federalism says, “In a federal constitution the powers of government are divided between a government for the whole country and governments for parts of the country in such a way that each government is legally independent within its own sphere.”1

K. C. Wheare’s works on the concept of Federalism were crucial to the paradigm shift in the understanding of this topic from a philosophical question to a more legal and structural one. He went on to explain various pre-requisites of a ‘Federation’ most of which were drawn from the union of states in America. He talked about ‘economic prosperity’, ‘defense from a common enemy’, ‘similarity in political institutions’ and geographical coherence as some of the key incentives for the states to unite as one.2 But the most important contributions Where made in the modern context were three fold. Firstly, he listed out various conditions which were a ‘must’ for a country formed as a result of a union of states to function under a ‘federal government’. These included the ‘desire’ to be in a setup that included division of power and this desire should be present at the same time the ‘capacities’ to work in such a system.3 Secondly, he listed out the conditions necessary for a union of states to be able to function in a federal structure, which he called the “latter-requisites” because it was for a time after the union was complete. These included, fear of or hostility to a common enemy compelling a group of communities to form an alliance, similarity of political and social institutions and the central authority should not be authoritarian or dictatorial in nature.4 Finally, Wheare explains the conditions that should be present for the maintenance of a union of states. For one, units of the

1 Wheare, KC (1958) “Modern Constitutions”: Oxford University Press, London 2 Wheare, KC (1963) “Federal Government”: Oxford University Press, Toronto, pp. 37-38 3 Wheare, KC (1963) “Federal Government”: Oxford University Press, Toronto, pp. 34-36 4 Wheare, KC (1963) “Federal Government”: Oxford University Press, Toronto, pp. 44-47

36 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 state should not be large enough to overrule the others and be able to dominate the will of the federal government and two, the presence of sufficient resources in order for it to sustain governments at both the federal and state level.5

THE NATION-STATE THEORY

This paper seeks to discuss several conflicts that arose in India post-independence and particularly threatened the federal structure of the nation. Such conflicts can only be deeply understood if we grasp the distinction between a ‘state’ and a ‘nation’ made by scholars of political theory. In explaining exactly what a ‘Nation’ is Stephen J. Brown drew from one of the earlier explanations by Walter Bagehot and exclaimed,

“The main influences which contribute to form a nationality are more or less as follows: - (1) The physical environment, (2) race, (3) language, (4) custom, (5) religion, (6) common interests, (7) history and the men who have made it, (8) a national government.”6

The works of Bagehot are crucial to understanding that it was for the first time that the common understanding of a ‘nation’ was not within the confines of a ‘state’. The emphasis on this distinction is critical to this paper because the aforementioned cues to what forms a nation are found in several state-center conflicts that we will study later. The views of Bagehot and Brown are further emphasized by Ciarán O'Kelly in his work titled ‘Nationalism and State’. According to him there is a marquee distinction between a state and a nation. He uses the French Revolution as an example of what he called ‘civic nationalism’. He concluded that certain ideas like Justice and Liberty were vague but enough to ‘solidify’ the foundations of a nation enough to form a state.7 Besides, it was in the common interest of the French to overthrow the monarchy and set up a democracy. Furthermore, he talks about the concept of ‘Etnic Nationalism’ which in a simple sense is closely associated with the word ‘diaspora’. O’Kelly uses the example of the surge of German nationalism after the end of the First World War. He says,

5 Livingston, WS (1956) “Federalism and Constitutional Change”: Clarendon Press, Oxford, Pg 2 6 Brown , SJ (1912) “What is a Nation”: An Irish Quarterly Review, Vol. 1, No. 3. pp. 498 7 O'Kelly, Ciarán (2003) “Nationalism and the State” in Bellamy, Richard & Mason, Andrew, “Political Concepts”: Manchester University Press, Manchester. pp. 52-55

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“Ethnic Nationalism was not confined to national borders, as civic nationalism was. So, pan- Germanism was an aspiration to unite the Germanic peoples of Europe, not a celebration of national achievement.”8

Adolf Hitler banked upon this surge and used it as a tactical tool to grow powerful and finally become Chancellor in 1933. The expansionist policies of Hitler were inspired by the sense of unity that came from identifying one’s self as a ‘German’ more than anything else. It did not matter if they lived inside the ‘state’ of Germany yet, the emotions attached to being a German led to the spread of Nazism. For instance, Hitler famously negotiated the handover of Sudentaland a large region of Czechoslovakia, which had a majority of Germans living there.9 And this was made possible simply because he believed himself to be the champion and spokesperson of the German race and the people backed him with the power to unite the German race into one nation-state. The pogrom against Jews was another sub set of this ideology of the Nazi party. This era in history saw the one the most extreme forms of nationalism and that is critical for us to understand, because if used for malicious purposes this sentiment can explode into a catastrophe, like it almost did more than half a century ago. As Bagehot would argue that in this case of nationalism, the idea of dominance of one race over all others occupied the heights of emotions for millions and they actively pursued the goal of uniting all corners of the world with their own race as the ‘master race’. The post-modernists’ view of nationalism is bent more towards center-state conflict and fits perfectly within the boundaries of this paper. Ciarán O’Kelly on this subject says,

“The legitimacy of states, they argue, is under threat both from reactionary ethnic nationalists and from the dissolution of communities, as traditionally conceived. In a globalized world, the nation can play an important stabilizing role. While ethnic nationalism is not desirable, neither is a situation where states cannot relate to their citizenries. Nationalists want to develop an agenda that will help re-orientate people back to a relationship with their democratic states.”10

While breaking down Richard Kearney’s take on the subject, O’Kelly says that it is difficult for the state to unify a very diverse population and concludes that the only way to find stability

8 O'Kelly, Ciarán (2003) “Nationalism and the State” in Bellamy, Richard & Mason, Andrew, “Political Concepts”: Manchester University Press, Manchester. pp. 56 9 Lowe, Norman (2013) “Mastering Modern World History”: Palgrave Macmillan. pp. 81-82 10 O'Kelly, Ciarán (2003) “Nationalism and the State” in Bellamy, Richard & Mason, Andrew, “Political Concepts”: Manchester University Press, Manchester. pp. 56-57

38 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 in such a situation is by ‘dispersing power above and below the nation-state’. 11 This brings us to the most important subject of this paper, i.e. the state-center conflicts in India which casts a threat upon the sovereignty of India as a state. We shall examine conflicts which had this paradox of ‘nation’ and ‘state’ at the center of it. Conflicts like The Khalistan Movement, the Kashmir conflict and the movements for autonomy in the North-East. Before we dive into an in-depth study of the aforementioned conflicts a brief historical understanding of India as a union of states, both before and after India became a republic are crucial. It would be imperative to lay stress on the particular period just before and after independence when the process of handover of administration to Indians was going on and thereafter the constituent assembly was formulating the constitution of independent India.

INDEPENDENCE: BEFORE AND AFTER

The very core idea of a federal form of government is division of power between a central authority and a local authority which was brought to India by the British by the Government of India Act of 1935. Even during this time, it was acknowledged that the vastly diverse nature of the population in the Indian subcontinent it was difficult to break up the central authority and divide it among various provinces. Another obstacle in the way was the authority of the princely states, which would remain a bone of contention even after independence. Even though India had become a federation the distribution of power, according to many leaders like Nehru, was uneven. On one side was the struggle against the colonizers and on the other the surging communal politics which had a say in postulating the kind of federation India would be, going into the Second World War. As Stalin and his forces took over Berlin, the complexities of forming a new state began to resolve itself as the independence movement reached its zenith and the British were convinced they had to leave India for good. But, on the other hand the communalization of the struggle for independence became increasingly complicated. The demand for a separate state of set up a number of hurdles on the road to independence. This demand was mostly down to the famous ‘Two-Nation Theory’ crafted by Sir Syed Ahmed Khan and eventually realised by Muhammad Ali Jinnah. Since, we have already done our homework on the difference between a ‘state’ and ‘nation’, the explanation to the two nation theory would be rather simple. It says that Muslims and Hindus

11 O'Kelly, Ciarán (2003) “Nationalism and the State” in Bellamy, Richard & Mason, Andrew, “Political Concepts”: Manchester University Press, Manchester. pp. 56-57

39 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 could not co-exist in one single state because they were two different nations. After several rounds of proposals, negotiations and re-negotiations, the demand for a separate state of Pakistan was agreed upon and the Independence of India Plan was finally tabled and as we know it, the two states of India and Pakistan came into existence soon after, with the latter being a Muslim majority state.

The politics of partition was one of the key driving forces for the constitution makers to make India a federation, but with a strong center. There was always skepticism over how several provinces and princely states would be integrated into a unified system under one government. There also existed fear over disintegration, owing to communal politics. This was the reason why the constitution makers of India did not want to compromise a weak central government. This brings us to another very important question about the Federal Structure of India, i.e. what does the constitution have to say about India as a Federal State?

According to Jaffrelot and Kalyankar, “Federalism in the Indian subcontinent is older than the Indian Union itself because during the colonial period, the British had already divided the country into a number of provinces (with the addition of a myriad of princely states led by more than 500 Maharajahs and Nawabs)”.12 The reforms of 1909, 1919 and 1935 show how the British slowly began to concede power in bits and pieces. In 1935, the Government of India Act granted a form of government to the provinces which would eventually go on to constitute a political framework for India in 1947. The Constitution framed in 1950 drew heavily from the political structure already in place owing to the Government of India Act, 1935. Most important were two features that the Congress opted for, i.e. A stronger central government than previously envisioned within a system of “cooperative” federalism. The modern view of cooperative federalism is very different than the model used in the nineteenth century. In the 1970's, federal mandates in the USA became more exacting and binding, and no longer emphasize unconditional assistance to the states. The national government also provided deadlines for compliance and could penalize the states for failing to meet them.13 This obviously had implications in other federations, such as India, but by then India was a well knitted federation and an increasingly strong center, but the important question still remains.

12 Jaffrelot, C & Kalyankar, S (2019) “To What Extent is India a Union of States? From Quasi Federalism to National Federalism”: Policy Brief - Institut Montaigne. pp.7-8 13 Kincaid, John (1990) “From Cooperative to Coercive Federalism” in The Annals of the American Academy of Political and Social Science, Vol. 509, American Federalism: The Third Century. pp. 139-152

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How did we reach this point of integrity among states with a high number of center-state conflicts acquiring a major portion in the country’s history? We shall try and answer that very question while assessing those conflicts.

Moving on to the constitutional basis of Indian Federalism Austin elucidates his views on the same, which are befitting in the context of connecting history with our rather political thesis. He says,

“The political structure of the Indian Constitution is so unusual that it is impossible to describe it briefly. Characterizations such as ‘quasi-federal’ and ‘statutory decentralization’ are interesting, but not particularly illuminating…. India had unique problems, they believed, problems that had not ‘confronted other federations in history ’…. Therefore, Assembly members, drawing on the experience of the great federations like the United States, Canada, Switzerland, and Australia, pursued ‘the policy of pick and choose to see (what) would suit (them) best, (what) would suit the genius of the nation best …. This process produced …. a new kind of federalism to meet India’s peculiar needs.”14

The Constitution of 1950 established three lists for the division of authority between the Center and the states: the Union list has 97 articles of subjects conventionally reserved for the center like those related to national defense, international affairs, communications, and currency; the list of the states has 66 items, including police, education, health, agriculture, industry, and local governance. Finally, the Concurrent List has 47 areas on which the Center and the states are supposed to work in collaboration. The constitution makers idealized the doctrine of “cooperative federalism” which was supposed to prevail in practice. This was reflected in the Concurrent List, the central government and the state governments were called on to collaborate on daily basis in the context of federalism. Often the areas of responsibility overlap which calls for cooperative efforts; the implementation of laws passed by the national parliament often falls to the states. According to Jaffrelot and Kalyankar, “Moreover, it should be noted that the national civil servants, who are the heirs of the elite Indian Civil Service under the British, which was renamed Indian Administrative Service (IAS), shuttle back and

14 Austin, Grantvile (1999) “The Indian Constitution: Cornerstone of a Nation”: Oxford University Press. pp. 186

41 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 forth every three years or so, between the state where they are assigned and New Delhi. They are the living symbols of this cooperation between the Center and the states.”15

Naturally, it can be concluded from our short trip down history that there was an imbedded fear of disintegration among the members of the constituent assembly which led to the making of a constitution with a strong center. Yet, they did not want to compromise on the constitutional need for a federal state. It was most important to strike a balance between the principle of cooperative federalism and need for a strong center. It was especially important, when it came to resolving any center-state conflicts. Having said that, we move to the various conflicts that arose in the time after independence which was either resolved or not but had a say in shaping the federal structure of India.

INTEGRATION OF PRINCELY STATES

A trend that many would notice in the process of decolonization is that the colonial rulers, always left a massive mess behind. The case of India was no different and the process of partition was hasty and arbitrary. Little to no attention was paid to the logistical problems that would arise from the system created to choose areas that would go to Pakistan. Nevertheless, two new countries were born, but a lot of the work was still complete because with the end of the colonial rule, the massive number of treaties signed by the British with over five hundred princely states was dissolved. The burden of organizing all these states was now on their rulers and the newly born states of India and Pakistan. Although the states were in theory free to choose whether they wished to accede to India or Pakistan, Mountbatten had pointed out that "geographic compulsions" meant that most of them must choose India. In effect, he took the position that only the states that shared a border with Pakistan could choose to accede to it Most of the states chose to join India and some picked Pakistan. The fate of some princely states was difficult to decide and various factors led to a conflict in one way or the other.

These princely states did not enjoy the attributes of independent sovereignty under the British rule. After Independence, Sardar Vallabhai Patel headed the States Department and was naturally empowered to have talks with the rulers of all such native states and settle the process

15 Jaffrelot, C & Kalyankar, S (2019) “To What Extent is India a Union of States? From Quasi Federalism to National Federalism”: Policy Brief - Institut Montaigne. pp. 8-9

42 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 of accession without any disputes. Many accessions to the state of India went smoothly but three states in particular caused a great amount of problem for Patel, these were Jammu and Kashmir, Junagarh and Hyderabad. On 15th August 1947 most native states except the aforementioned three had signed an instrument of accession to become a part of the Indian Union. Most princely states surrendered the powers over Defence, Communications and External Affairs of their state, which in reality they never really enjoyed under the British. Therefore, the instrument of accession did not bring about many changes in the internal hierarchy and structure of these states.

The first case to look at was of Junagarh, a state in the south-west part of and as per the directions of Mountbatten, the Nawab of Junagarh should have acceded to India but refused to do so and claimed that even though Junagarh did not have a physical border with Pakistan, it could be accessed by sea which gave way to extensive criticism The boiling point was reached when two states Mangrol and who recognized the suzerainty of Junagarh refused to accede to Pakistan and declared their independence and the Nawab forcibly occupied the two states. Rulers of neighbouring states retaliated and requested the Indian government to intervene while a group of Junagarhi people, led by Samaldas Gandhi, formed a government-in-exile, the Aarzi Hukumat ("temporary government"). The Indian military intervened and the Nawab along with his family fled to Pakistan. The crumbling court of Junagarh caved and invited the Indian Government to negotiate the terms of accession.16 The Indian authorities were of the opinion that if military action was not taken, the already worse state of communal conflict would go out of hand.

Another peculiar case was that of Hyderabad, with an ambitious prince at the helm. Nizam Osman Ali Khan wanted to remain independent from the date of transfer of power. Hyderabad was a landlocked state that stretched over 82,000 square miles (over 212,000 square kilometers) in southeastern India. While 87% of its 17 million people were Hindus, the politics of Hyderabad was dictated by the Muslim elite.17

16 Lumby, EWR (1954) “Transfer of Power in India”: George Allen and Unwin; London. pp. 237-238 17 Talbot, Phillips (1949) "Kashmir and Hyderabad" in World Politics, Vol. 1, No.3: Cambridge University Press. pp. 323-324

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At the time of transfer of power, Hyderabad was the largest in terms of both size and population. It had its own army, airline, telecommunication system, railway network and currency. This made the Nizam think that he did not have to depend on India for anything and was self-sufficient. As Bagehot would emphasize the existence of a self-sufficient national government as extremely important for the formation of a nation-state. The Nizam seemed to believe that the resources at his disposal were enough for Hyderabad to be a separate independent country.

The Muslim nobility and the Ittehad-ul-Muslimeen, a powerful pro-Nizam Muslim party, insisted Hyderabad remain independent. Accordingly, the Nizam in June 1947 issued a firman announcing, his state would be resuming independence. The Government of India rejected the firman, terming it a "legalistic claim of doubtful validity". It was argued that the strategic location of Hyderabad was such that the national security of India would become an issue. It also pointed out that the state's people, history and location made it unquestionably Indian, and that its own "common interests" therefore mandated its integration into India.18

Several rounds of negotiations took place while communal tensions rose as a group of militia names the ‘Razaakars’ was accused of committing excesses against Hindus in Hyderabad. Soon, Patel insisted that the only way to prevent any escalation of communal tensions was by bringing into action the Indian army. On 13 September 1948, the Indian Army was sent into Hyderabad under Operation Polo on the grounds that the law and order situation there threatened the peace of South India. The troops met little resistance by the Razakars and in the “hundred hour war” took complete control of the state.19

THE PECULIAR CASE OF JAMMU AND KASHMIR

At the time of the transfer of power, the princely state of Jammu and Kashmir was ruled by Maharaja Hari Singh, a Hindu, while majority of the population of the state was Muslim. Hari Singh was hesitant about acceding to either India. This was because Jammu and Kashmir

18 Talbot, Phillips (1949) "Kashmir and Hyderabad" in World Politics, Vol. 1, No.3: Cambridge University Press. pp. 324-325 19 Talbot, Phillips (1949) "Kashmir and Hyderabad" in World Politics, Vol. 1, No.3: Cambridge University Press. pp. 326

44 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 had borders joining both India and Pakistan and he was afraid that whichever path he chose could provoke adverse reactions from the public.

Therefore, he signed a Standstill Agreement with Pakistan and proposed one with India as well. He did this to buy more time and announced that Kashmir intended to remain independent. This proclamation was met with criticism from all fronts but most notably from Sheikh Abdullah, the popular leader of Kashmir's largest political party, the National Conference, who demanded his abdication.20

Pakistan in retaliation to this proclamation did what they believed worked for India in Hyderabad. In an attempt to force the issue of Kashmir's accession in their favour, Pakistan cut off supplies and transport links. Meanwhile, chaos had erupted in Punjab (both, the province in India and Pakistan) resulting from Partition which further severed transport links. Rumours about atrocities against the Muslim population of Poonch by the forces of Hari Singh caused the outbreak of civil unrest. Lumby would emphasise the importance of the events that followed shortly thereafter, as a turning point in the entire conflict. Pathan tribesmen from the North- West Frontier Province of Pakistan crossed into Kashmir. The invaders made rapid progress in their march towards Srinagar and Hari Singh felt overwhelmed by the pressure of the invaders and decided to ask for military assistance from India. India in return demanded that he sign an Instrument of Accession and set up an interim government headed by Sheikh Abdullah. The Maharaja in a desperate attempt to save his kingdom complied.21

Indian troops were rallied soon and they quickly flushed out the tribesmen and secured Jammu, Srinagar and the valley itself during the First Indo Pak War. The fighting came to a halt with the onset of winter, which made much of the state impassable. The war came to a standstill and with no option left Prime Minister Nehru, declared a ceasefire and sought UN arbitration, claiming that India would otherwise have to invade Pakistan itself, in view of its failure to stop the tribal incursions. The plebiscite ordered by the UN was never held, and on 26 January 1950, the Constitution of India came into force in Kashmir, but with special provisions made for the state. India did not, however, secure administrative control over all of Kashmir. The northern and western portions of Kashmir came under Pakistan's control in 1947, and are today Pakistan-

20 Lumby, EWR (1954) “Transfer of Power in India”: George Allen and Unwin; London. pp. 245 21 Lumby, EWR (1954) “Transfer of Power in India”: George Allen and Unwin; London. pp. 245-248

45 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 administered Kashmir (Pakistan-occupied Kashmir as referred by the Indian Government). In the 1962 Sino-Indian War, China occupied Aksai Chin, the north-eastern region bordering Ladakh, which it continues to control and administer. It would important to note at this juncture that mere facts and marquee events in history cannot explain the depth of the conflict in the valley.

There are many players with varied agendas; there is India who believes that the state of Jammu and Kashmir including the Pak-occupied Kashmir and Aksai-Chin region rightfully belong to India; Pakistan believes that Jammu and Kashmir being a Muslim majority state was always meant to be a part of Pakistan; China occupied the strategically important region of Aksai-Chin and refuse to let go of it and has rarely been implicit about their anti-India stance in the issue; the local leaders in the state of Kashmir who are from various political parties in India have their own agendas and ulterior motives and finally the most important are the militants seperationists operating on both sides of the LoC and there is the omnipresent sentiment of Kashmiris who believe that they are supposed to be an independent state. The Indian authorities have always been upfront and vocal about Pakistan and their indirect involvement in the cross border militancy. India’s debatable methods used in administrating the region it controls has always stirred up controversy. The recent revocation of Article 370, which gave Kashmir a special status, again became a burning issue in the long standing conflict.

Let us now try and compare two case studies that we have discussed, i.e. Kashmir and Hyderabad. Both states wanted independence and did not want to join the Indian Federation and if I put it in the context of this paper, both nations wanted to form a separate independent state. But, why did both states suffer a different fate? Ahsan I. Butt in his book ‘Secession and Security’ explains why. He says that the involvement of an outside force or a third party is critical to the prolonging of such conflicts.22 The Hyderabad conflict was resolved by Patel through a combination of a blockade to cripple Hyderabad first and then swift military action. The conflict was a rather simple equation and the solution all the more easy to understand. It was one state against another and the more powerful one stood victorious. Pakistan could do little to nothing in this conflict, mostly due to their logistical constraints. In Kashmir, there was a lot to fight for, for both India and Pakistan. So was the case of the Kashmiris, who believed

22 Butt, Ehsan (2017) “Secession and Security”: Cornell University Press. pp. 83-86

46 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 in and demanded a separate nation-state. Another way to look at it is that with the passage of time, international diplomacy has become critical to conflict resolution. As the world becomes more and more globalised and economically inter-dependent, various measures are used against any state that in the opinion of majority states in the world are the wrong-doers. Many believe that this is one of the key reasons why the Kashmir conflict is in a stalemate and there seems to be no plausible solution in sight. But the larger question which often people seem to overlook in this conflict, i.e. the demand of the Kahsmiri public for a separate and independent nation-state. It seems as if India and Pakistan both keep making claims on behalf of the Kahsmiri population whilst not actually listening to the public’s demands. A plebiscite was never held and they feel betrayed by both India and Pakistan on every front. Kashmir has become a battleground which has seen bloodshed for over seventy years and continues to suffer in numerous ways. The final and by far the most important piece of the puzzle in the Kashmir conflict is the communal angle to the issue. Communalism in India had been breeding even before the turn of the 20th Century and it led to partition, riots and most of all, bloodshed on both sides. The way both India and Pakistan have tackled this conflict only resulted in stretching it beyond repair. To add to the misery of the victims in Kashmiris, the economic and social conditions of their state only deteriorated and became a breeding ground for communalism to thrive and make the conflict so complex that it would remain unresolved for many years to come. It would be difficult to put into words accurately, how the same communal hatred has been able to live on even after the demand for a separate nation for Muslims was fulfilled. Bipin Chandra in his book India since independence does it perfectly. He says, “Like all ideologies and politics, communalism has a concrete social base or roots; it is the product of and reflects the overall socio-economic and political condition. … Communalism is, thus, no answer to any of the problems leading to its generation and growth. Instead, it undermines the real struggle for changing social conditions. While the society and polity of India after independence have been secular, the logic of the socio-economic system has continued to provide favourable soil for the spread of communalism. Especially important in this respect have been the social strains which have arisen out of the pattern of economic development. Indian economic development after 1947 has been impressive but the problems of poverty, unemployment, and inequality arising out of colonial underdevelopment have been only partially tackled, especially in the context of the population explosion. These problems

47 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 breed frustration and personal and social anxiety among the people and generate unhealthy competition for the inadequate economic and social opportunities.”23

It would be easy to join the dots on how emotions like communal hatred or race superiority can spiral out of control and result in major conflicts. What remains at the core of such conflicts is the identification of one’s self with a nation and belief in being capable of forming a nation- state for the entire population. And if we infer correctly from the words of Bipin Chandra, the socio-economic development of a community is critical to prevent any ideas like these to breed. It is not the only reason why separatist tendencies can crop up but one of the critical ones. It is also crucial to ending conflicts and becomes a critical part of conflict resolution. This brings me to the center-state conflicts that were resolved and back up my claim that socio-economic development is a crucial aspect of conflict resolution especially when it comes to separationist movements.

THE KHALISTAN MOVEMENT

In order to best understand the problem the separationist tendencies that arose post 1984, we must first understand the socio-economic standing of the population in Punjab and also the class divide on those basis.

According to Butt, “A number of factors, structural and more immediate, were responsible for the outbreak of Sikh mobilization in the 1980s. First, Punjab had a relatively even demographic split between its Sikh and Hindu populations, concentrated in the countryside and cities respectively. The rural Sikh community was itself divided between more prosperous, landowning Jats on the one hand, and the traders, former refugees from Pakistan, scheduled castes, and landless laborers on the other. The Akali Dal Party, an ethno-religious party purporting to represent Sikh interests, generally attracted the vote of the landowning Jat Sikhs, while Congress’s main supporters were Hindus and poorer, urban Sikhs. Congress, as a result, had a larger vote-bank than the Akalis; the latter would benefi t if it were able to unite the Sikh population, both rural and urban, poor and rich, to form one voting bloc”24

23 Chandra, B., Mukherjee, M. & Mukherjee, A (2008) “India since Independence”: Penguin Books India. pp. 435-436 24 Butt, Ehsan (2017) “Secession and Security”: Cornell University Press. pp. 99

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It would important to note here that even though the Akalis had a weaker political base as compared to Congress, the demand for a separate province had already been made at the time of independence. Nehru did not comply at the time but the sentiment kept brewing for a long time. As it happens in a political movement there are always two types of groups even within an already established organisation, i.e. the radicals and the moderates. The rise of the radical group under Bhindrawale would come soon after the death of Lal Bahadur Shastri. The split in the congress in 1967 led to the rise of state level political parties all across the country and so it happened Akali Dal also started to widen its base. The Punjab Movement or the Khalistan Movement began to demand a separate state for the Sikh community which would be called Khalistan. It is difficult to pinpoint one reason for such demand, because even though Akali Dal declared themselves as the spokesperson of the entire Sikh community, the reality was much different. As pointed out earlier, a lot of the population in the province of Punjab was not Sikhs. The Akali Dal was not taken seriously and even though the Anandpur Sahib resolution was signed in 1973, it never really reached a concrete action by any of the side. This was mostly because the demands were made by political leaders who had little support from the masses. This was until the radicals under the leadership of Bhindrawale began accumulating arms and resorted to militancy. This eventually led to the Blue Star operation followed by the assassination of Indira Gandhi and finally the genocide against the Sikhs in North India. These turn of events only fuelled the militancy in Punjab. Rajiv Gandhi who succeeded his mother in the position of Prime Minister quickly moved to sign a treaty with the moderates. This was made possible because only a small fraction of the Akalis wanted to resort to extremist methods and only due to the popularity of Bhindrawale they did not move against him. Subsequently, the Rajiv-Longowal Accords were signed and a very swift police action was taken against any remaining militants in Punjab and the movement for the state of Khalistan came to an end in 1992 when Congress formed the state government in Punjab. An interesting question to ask about the entire conflict is, how did the militant movement rise? Was there an actual demand for a separate country? If yes, then why did it die out merely with an operation that killed a few hundred militants?

According to Butt, Bhindrawale’s rise to fame did not just come about out of the blue. It was the Congress leadership that orchestrated his rise to power among the Akalis because he was an extremist and the public opinion in Punjab was never to actually secede from India and that only a small proportion of the population actually wanted such a division. Most Sikhs were happy with the Anandpur Sahib resolution and consequently the Rajiv-Longowal Accords. The

49 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 death of Bhindrawale and his small group of supporting militants was the end of the Khalistan movement.25 Another interesting aspect of such conflicts that is unveiled here is the role of a ‘third party’.

Butt believes that the strength of a secessionist movement at times depends on the support from a third party. He compares Punjab and Kashmir in two similar ways by making the claim that the militant movements in both states were supported by an outsider who had some motive behind their cause. Pakistan aiding the militants in Kashmir and Congress doing the same with Bhindrawale reflects his ideas. He goes on to say that such support is critical to movements that require resources of a scale that a common group of civilians cannot procure. His hypothesis stands approved by the fact that, as soon as the interests of the Congress were fulfilled they crushed the movement they had created themselves.26

MOVEMENTS IN THE NORTH-EAST

Movements for autonomy have marked the political discourse in the North-East in the last few decades. While some had resolutely expressed the need for more autonomy within the present setup, other movements evolved into more violent ones and took the shape of a militant secessionist movement. In the time before Independence the British followed a policy of isolationism with the North-East. Even after independence was attained no real attempt was made by the central government to reverse the situation which only let the anti-Indian sentiment brew longer. In 1962, the Sino-India conflict caused the center to look at the North –East more like a security issue. The slightest of anti-India sentiment was met with ruthless suppression which only worsened matters. To take a better look at the center-state conflicts we examine each conflict individually. The Naga Hills region comprised of members of the Naga Tribe who were put under the state of Assam just before independence and the Naga National Council leading a movement for self-determination. In 1951 a referendum was conducted in which 99% people voted for a separate state, according to the NNC. The central government and the Assam government refused to acknowledge the results. The movement led by AN Phizo started to lose the attention

25 Butt, Ehsan (2017) “Secession and Security”: Cornell University Press. pp. 100-102 26 Butt, Ehsan (2017) “Secession and Security”: Cornell University Press. pp. 84-86

50 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 of the authorities and started spiraling towards extremism and even the moderate began a campaign of civil disobedience. This caught the attention of the center and security forces were sent to the Naga Hills to restore order. In 1956, the Naga Hills were declared a ‘disturbed area’ and the suppression of any kind of dissent continued.27 Even though the measures resorted to were ruthless, yet the demand made by the public could not be ignored and in order to put the issue to bed, Nehru opened dialogue with the Moderates and agreed to give them statehood. The extremists did not accept such a proposal which is why Nehru went ahead and crushed the rather meager armed rebellion in the state. The masses were content with statehood and the extremists did not receive any sympathy of the public. In 1963, Nagaland officially became the smallest Indian state. The Mizo Hills area was also kept under the state of Assam at the time of independence. A movement for independence started soon after but only gained ground late in 1950s when Laldenga, the leader of the Mizo National Front realized that without outside support his movement was not capable of catching the eye of the central government. Delhi followed the same strategy which worked in other places i.e. appease the moderates and cripple the extremists. In 1972, the Mizo Hill District was turned into a Union Territory and finally attained full statehood in 1987. The case of Assam was much different than any other conflict that we have discussed thus far. They did not demand secession, but they wanted ‘Assam for Assamese’. The third Indo-Pak war of 1971 and the time just before that, which saw the massacre of hundreds of Bengali Hindus and Muslims, was the major cause for the Assam agitation. The war caused the displacement of a large number of civilians who moved to Assam. The main demand of the Assamese people was the expulsion of all intruders. The movement was led by two organizations by the name All Assam Students Union and All Assam Gana Sangram Parishad. A statewide bandh and mass picketing in 1979 followed by the Nellie massacre led the government to take strict action against the offenders. Simultaneously, the government opened dialougue with AASU-AAGSP and in 1983; the Illegal Immigrants (Determination by Tribunals) Act was passed. Further negotiations led to the Assam Accords, signed in 1985 which marked the end of the agitation.

27 Srikanth, H and Thomas, CJ (2005) “Naga Resistance Movement and the Peace Process in Northeast India” in Peace and Democracy in South Asia, Volume 1, Issue 2, pp. 61-63

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THE LINGUISTIC ORGANISATION OF STATES

The new Constitution of India, which came into force on 26 January 1950, declared India to be a "Union of States" officially making India a federation. The constitution of 1950 distinguished between three main types of states and a class of territories:

1. Part A states, which were the former governors' provinces of British India, were ruled by a governor appointed by the president and an elected state legislature.

2. Part B states, which were former princely states or groups of princely states, governed by a Rajpramukh, who was usually the ruler of a constituent state, and an elected legislature.

3. Part C states included both the former chief commissioners' provinces and some princely states, and each was governed by a chief commissioner appointed by the President of India.

4. The Part D territory was the Andaman and Nicobar Islands, which were administered by a lieutenant governor appointed by the central government.

The demand for linguistic organisation of states was not a phenomenon that began after independence. A unique linguistic movement started in 1895, demanding a state that we today know as Odisha. The movement demanded a separate Orissa Province to be formed by bifurcating the existing Bihar and Orissa Province. It was down to the efforts of Madhusudan Das that the movement eventually achieved its objective in 1936, when Orissa Province became the first Indian state to be organized on the basis of common languages.

The post-independence period saw the public opinion become more bent towards linguistic reorganization of states. The idea began spreading and gained enough attraction for several separate movements to crop up. The root cause for his phenomena is not known and is often debated about. In my opinion it was largely down to the general discontent with the maps drawn by the British before they left. The most notable was a movement to create a Telugu-speaking state out of the northern portion of Madras State, which gathered strength in the years after independence, and in 1953, the sixteen northern Telugu-speaking districts of Madras State became the new State of Andhra.

Many other communities had already been demanding the organisation of states based on linguistics. After independence, these mere demands from certain portions of society began to

52 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 morph into a movement. Therefore, the Linguistic Provinces Commission or the Dhar Commission was set up in June 1948. It rejected language as a parameter for dividing states. Later, Prime Minister appointed the States Reorganisation Commission in December 1953, with the remit to reorganise the Indian states. This was largely because of the immense support that these newly brewing ideas received from the public. The new commission was headed by the retired Chief Justice of the Supreme Court, Fazal Ali; with H. N. Kunzru and K. M. Panikkar as the other two members. The States Reorganisation Commission submitted a report on September 30, 1955, which recommended the reorganisation of India's states based on the linguistic identities of the populous.28 Subsequently, bills were passed to make changes to the constitution and set into motion the linguistic reorganisation of the states. What we learn from this movement is that many Indian communities identify their unity in the language they speak, which Bagehot had already pointed out years ago. There was not a lot of hysteria revolving this issue; it was less of a conflict and more of a redrawing of maps according to the will of the public. Another important learning from this movement is that even though the masses were united in identifying themselves among a group of people based on language, it never bypassed the federal structure set up by the constitution of India and only demanded for geographical changes. Even though the scale of the movement was large, there was little to no violence involved and it ended up being a rather peaceful democratic process and the results of which pleased everyone. There have been more movements for bifurcations like the demand for Telangana, but none took a violent turn and never threatened the federal basis of the country.

CONCLUSION

When analyzing the movements in the North-East and the Linguistic Reorganization of states while keeping the idea of ‘nation-state’ in mind, an argument can be made that these movements had the idea of identification of one’s self, among a group of people as one nation and deserved of self-governance at the very core of it. This should also mean that their demands should have been for a separate nation-state. Going back to the parameters set by Bagehot, these states did not have the resources to be a separate country and their ‘common interest’ was in staying within the federal structure of India. Even in the case of the Assam agitation, their demands were merely on the lines of protection of their identity and self. Now when we put

28 Report of the State Reoragnisation Commission, 1955

53 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 these conflicts into the larger debate on how they had an impact on the federal structure of India, it can be concluded that they had a profound impact and that too in a positive way. One could argue that center-state conflicts put a dent on the federal structure, but in opposition it can be said that if such conflicts only lead to assimilation and integration of various communities that feel threatened or marginalized through conflict resolution, it only helps solidify the federal foundations of a country. Furthermore, building on the arguments of Bipin Chandra, the route to a better society is through socio-economic development. The politics of hate only works when there is a class of people who are downtrodden and thus have a reason to resort to malicious means to achieve superficial goals. When we probe deeper into our question on the paradox of Indian federalism, we can conclude that a lot of the peculiar features of the Indian constitution that suggest India is more of a quasi-federal state rather than a typical federation like the USA were drawn into the constitution due to the wrecked colonial history and communal politics. Therefore, at the time of handover of power and framing of the constitution the fear of disintegration was real, which is why a strong center was critical. And having studied the various conflicts in the time post-independence we find that peaceful means opted by the center can prevent escalation of conflicts. Most of the center-state conflicts were leaning towards protection of one’s interests and not to harm the federal structure in any way and only helped prove that India was always firmly knit federation and ever since independence all states have accepted the federal structure as a necessity and hence have abided by it at all times. It would not be an overstatement to say that center-state conflicts still crop up time and again but at the end of the day the constitution is held in high regard by both the center and the state even if in conflict. Even conflicts that took a serious turn and threatened the federal structure of India, when settled through peaceful means proved no threat post the conflict resolution and a lot of credit for that goes to development driven policies of the center which only helped improve the socio-economic conditions of the society and hence lowering the chances of violent conflicts. A marquee example would be of Punjab, the state that benefitted the most from the Green Revolution, which interestingly kicked off just after the Khalistan Movement was disintegrating and hence could have been one of the reasons for the movement never resurfacing. Since the Green Revolution, Punjab has been one of the key contributors to the country’s economic development. Similar is the case of Andhra Pradesh, or the formerly called princely state of Hyderabad. Even though the case for a separate nation-state in this conflict was more than legitimate and looked possible too, yet it was integrated into the federal structure of India and since then the state has grown economically into one the most important

54 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 one for the country’s economy. It would be critical to say in the end that conflicts should not only be seen in a bad light but as opportunity to address key concerns of the citizens and focus should be on peaceful resolution by both sides.

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