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 India 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 35 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 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 37 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 2 ISSN 2455-4782 “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’.