Asymmetric Federalism to Coercive Federalism

By Sanyam Jha

Introduction

The federal structure enshrined in the Constitution is a dynamic and evolving concept. It simply implies that the federal structure or functioning of the Union and the State is not strictly divided per se. Although there exist certain classifications at all points to highlight who gets the higher say in which domain of governance, this hierarchy has loopholes and grey areas.

K.C. Wheare has popularly laid down the apt description of the federal principle as “the method of dividing powers so that the general and regional governments are each within a sphere coordinate and independent.” In essence, the concept is referred to a structure of the strict division of political power between the central government and state or provincial government under the provisions of the written constitution in place. This doctrine follows the principle of decentralization of power where one party in the equation cannot wield unnaturally high power on others. This is generally the model of federalism followed in the United States of America.

India on the other hand, adheres to a different variant of federalism. This variant entails a hybrid model of both, conventional centrifugal elements and strong centripetal elements. This form of federalism gives rise to a comprehensive distribution of powers and a semblance of a slightly stronger central government vis-à-vis state governments. This is preferred over a system of clear supremacy that one would have over the other. To elucidate this further, one need not look beyond Schedule VII of our constitution that provides 61 subjects to state control that entail crucial and wide-ranging matters from public order, public health, and sanitation to agriculture. However, overarching provisions such as single citizenship, unified judiciary, residuary power in Schedule VII, Entry 97 of the Union List of the Constitution, the power to proclaim emergency as enshrined in Articles 352, 356, and 360 tend to indicate a strong center. This structure of asymmetric federalism is better known as the Quasi-Federal structure in India. 

System of Checks and Balances

Despite the inherent imbalance of powers that are often associated with the system, it has sustained the test of time because of the delicate balance the Indian political structure provides with the parliament being at the core of this balance. The upper house i.e., Rajya Sabha allows for a proportionate allotment of seats that states can nominate too. This system of checks and balances has paved the way for back door lobbies, consultation processes, and other forms of representative interest-sharing mechanisms. One major example could be the presence of House Panels that scrutinize and recommend constructive changes to draft bills. The Rajya Sabha or even Lok Sabha can refer any piece of legislature to such committees for scrutiny.  A noteworthy instance would be the committee that examined the Insolvency and Bankruptcy Code that recommended changes to the Code in order to streamline it to the realities of the Indian Polity. 

However, this balance is premised upon the willingness to maintain it. Any disruption could lead to Coercive federalism. A system that involves a usurpation of existing power-sharing mechanisms by the stronger Centre in favor of a concentration of power in its own hands. A dangerous proposition for a polity that involves a wide and diverse set of interests like India. 

Abrogation of Article 370 and The National Capital Territory of Delhi (Amendment) Bill, 2021. 

Post-Independence when Constitution was being framed it became imperative for the State of Jammu and Kashmir to be accorded a special status and this was done via Article 370. If Article 370 has to be described in a legal yet poetic paradigm, it can be described as the legal provision which reflected the Right to Self Determination of Jammu and Kashmir. The debate around the abrogation of Article 370 is way more nuanced and in multiple layers of public policy and legality but why we are referring to Article 370 is for a simple reason. Article 370 was abrogated on the whims and fancy of the central government and the only state ‘consent’ to this process was via the LG who was not an elected representative of the state. This becomes very important, considering the fact that the central government had to essentially impose a lockdown in the state for over a period of one year. This abrogation was done not only in the absence of any state political representation but till date has not seen any political ratification from the people of Jammu and Kashmir as there has been no election.

Further Jammu and Kashmir was bifurcated and the status of a state was essentially snatched away. This can be linked to the current scenario of Delhi. 

The central government recently passed The National Capital Territory of Delhi (Amendment) Bill, 2021. This bill curtailed the already limited powers of the Delhi government and brought it under the complete supervision of the LG of Delhi. The Lieutenant Governor has the power to review legislation or policy rolled out by the Delhi government which falls either directly under the ambit of public order and law or even ancillary to it. The provision at face value might look tolerable but practically any order Delhi government passes can now be subject to LG under the garb of public order or public policy. There are other provisions as well such as the Delhi government cannot order a probe on any administrative action without LG’s approval or will have to necessarily take LG’s opinion before any executive decision. Essentially everything the Delhi government will try to do will be subjected to LG’s scrutiny on a daily basis.

This leads to a gross subversion of democratic structure. A democratically elected Delhi government is not only crippled from governing but also made subjects to the LG who is a centrally appointed bureaucrat.  

Parliamentary Scrutiny and Use of Vague Provisions 

Parliamentary Scrutiny is instrumental for the smooth functioning and maintenance of the federal structure of India. This scrutiny becomes indispensable in preserving representation of state interests when looked at, in reference to the Rajya Sabha as it is primarily comprised of state-nominated members. 

The central government has successfully circumvented the Rajya Sabha on various occasions on contentious issues without any recourse. The most notable and contemporary case being Farm Laws passed by the parliament. Due process dictated a referral to a select committee for a detailed examination and discussion on its controversial provisions. The Chairman of Rajya Sabha did not pass the Bill through a voice vote, but further rejected a demand of a division citing unruly behavior. In addition to this, the present Lok Sabha has only referred 11 percent of the total bills to House Panels which is a steep drop from 60 and 71 percent in the 14^th Lok Sabha. Other methods such as classifying dubious amendment bills as Money Bills under Article 110 such as that of Life Insurance Corporation Act, 1956, the Aadhar Act, etc. 

These steps have circumvented any scope of scrutiny offered by the Upper House of the parliament or any select committee.

Conclusion

The current Indian polity if anything is shifting from an asymmetric model of the federal structure to that of a coercive model where the central government has either circumvented or super-imposed most of its contentious decisions on the state governments and union territories. This imbalance to the delicate structure of federalism is not exactly mentioned in any of the Constitutional Provisions but there is no explicit provision to prevent it either. Nevertheless, it is the moral and constitutional responsibility of the central government and judiciary to protect the spirit of federalism and preserve the unique balance of federalism the nation has witnessed for years.

(Sanyam Jha is a first year student of law at NUJS Kolkata)