Practise the Principle of Subsidiarity

By Justice Kamaljit Singh Garewal

Powers, jurisdiction and authority were always primary questions that victors addressed when territory was conquered, the defeated people vanquished, their rulers exiled and their elite decimated. Usually the new rulers would restore a semblance of peace, appoint one of their own trusted generals to control the land, collect taxes and extract war retribution. Sometimes a member of the defeated clan would defect and join the victors for reward of office. It is intrinsic to every conquest that the spirit of the conquered people must be destroyed completely to prevent them from rising again.

A good example of peace after conquest was Europe, conquered by Napoleon Bonaparte. France became very powerful, introduced its Code Napoleon, which is still extant today. Napoleon appointed one of his marshals on vacant thrones of Sweden and Norway and had matrimonial alliances with ruling families. After Napoleon’s defeat, the European powers met at Vienna in 1815 to settle the future of Europe through the gentle art of diplomacy, alliances, detentes and balance of power. Peace lasted until 1914, but after World War I, the Treaty of Versailles (1919) imposed such excessive war reparations on the vanquished that the defeated German nation rose again. The consequences were devastating. Coincidentally, the years 1815 and 1919 are also important landmarks in our constitutional history.

At about the same time as the Napoleonic years, the decline of the Marathas also began, leading the East India Company to expand its territory under Lord Wellesley and Lord Lake. Treaties with ruling princes of Rajputana are a good example to show how unfair and one-sided clauses were imposed through treaties. These treaties defined the relationships between the Company and the ruling princes and were to remain in force past the Government of India Acts 1919 and 1935, right up to the lapse of paramountcy in 1947.

After the 1815 treaties, a very slight semblance of federalism was introduced in the relations between the Company and the princes. Under the treaty clauses, the princes were to remain absolute rulers but with “perpetual friendship, alliance and unity of interest with the British ….. friends and enemies of one party shall be friends and enemies of both”. Very importantly, the princes “shall act in subordinate cooperation with the British and acknowledge its supremacy”. And finally, the tributes which the princes were paying to the Marathas would henceforth be paid to the British.

The British also had an alliance with Maharaja Ranjit Singh in Punjab in 1809. And afterwards in 1846 and 1849, they won the war and annexed Punjab. The boy Maharaja of Lahore was banished to London. Punjab became one of their provinces, though the Cis-Sutlej Punjab princes had alliances with the British like in Rajputana. Later, Oudh was also annexed in 1856. After quelling the 1857 revolt, the whole of India was taken over by the British Empire under Queen Victoria.

 The next noticeable step to introduce federalism was dyarchy in the provinces in 1919. The governor-general retained exclusive control over foreign affairs, defence and communication without answerability to the legislature. In the provinces, agriculture, local government, education and health came under a government of ministers, answerable to the provincial councils.

But the independence movement continued, the 1919 dispensation was not accepted and roundtable conferences were held leading to the concept of a Federation of India in the 1935 Act. Ruling princes were invited to accede to the federation. However, the creation of the federation was contingent upon at least half the number of princes (in terms of seats in the upper house) signing Instruments of Accession.

The Princes, in fact, did not accept the proposal of a federation. So the federation was still-born and the government in British India continued as a dyarchy designed under the Government of India Act, 1919. Relationships with the nearly 565 princely states, big and small, continued according to the treaties, alliances and pacts signed with the British. This is where matters stood in 1946. But strangely, the plan for a federation to keep India united under the Cabinet Mission Plan (1946) was also rejected. A year later, Independence was won by a vivisected India and not a united federation.

Incidentally, the Punjab assembly was also required to approve partition of the Punjab province, leading to the creation of India and Pakistan. The assembly voted in July 1947 in two groups, the western group consisting of mostly Muslims and a few Christian members. They, in fact, rejected the partition plan, whereas the eastern group consisting of Hindus and Sikhs accepted it. The rest is history. Had our leaders understood the concept of a true federation, independence could have been achieved by a united India.

The next task was integration of Princely India into India or Pakistan. This was achieved through Instruments of Accession signed by the ruling princes between 1947 and 1949, a necessary concomitant of the lapse of British paramountcy. The constitutional scheme, which came into force in 1950, continues till today. The scheme of power-sharing between the Union and the states is, in fact, not new in our Constitution as it is a continuation of the Government of India Act, 1935. The important subjects of agriculture, local, government, education and health have been state subjects since 1919.

The federal structure in India is complex. India is a union of states, which is not the same thing as a federation of states. The Preamble is silent in defining India as a federation, though India is a republic which is sovereign, socialist, secular and democratic. India can be all of that but it still does not help in defining whether we are federal or unitary.

India is sometimes called a quasi-federation or an asymmetric federation or a federation with a tendency to become unitary.

The relations between the Union of India and the states are given in Part XI of the Constitution, and the Union, State and Concurrent Lists in Seventh Schedule. There are many states which enjoy special provisions. One has to read these in Article 370 (temporary provisions for J&K), 371 (special provisions for Maharashtra and Gujarat), 371A (Nagaland), 371B (Assam), 371C (Manipur), 371D (Andhra Pradesh or Telangana), 371E (Central University for Andhra Pradesh), 371F (Sikkim), 371G (Mizoram), 371H (Arunachal Pradesh), 371-I (Goa) and 371J (Karnataka).

Sweeping views are now being expressed in the context of the battle against the pandemic because health is a state subject. Though the central government has declared a vaccination policy, it does not provide the vaccine, leaving individual states to buy vaccines in the open international market. This is not co-operative federalism at all. The stalemate over farm laws passed by Parliament is also on account of agriculture being a state subject since 1919, laws being clearly ultra vires.

After three scores and 14 years, we are speculating about federalism when all chances for a truly constitutional federal structure were lost in 1950 and later overlooked in spite of many learned reports, recommendations and resolutions. The first of these was the report of the Rajamannar Committee (1971) and then came the Emergency (1975-77) which gave rise to the Anandpur Sahib Resolution calling up more powers to the states, leaving only foreign affairs, defence and communications with the centre. The Sarkaria Commission (1983) also refined centre-state relations.

A federation requires an agreement between the central authority and the federating units. In India, there was no such constitutional agreement, and the term federation is also missing from the Constitution. There are many provisions which mitigate against federalism though we keep hearing that India is a federation with strong unitary features.

There are myriad different ways in which our federalism is weak, because the centre has a tendency to be strong, and does not yield autonomy to the states. There is always a lurking fear that parts of India may break away, like Pakistan did. The biggest threat has been from Kashmir, as if it will get geographically detached from India. What Kashmir has been calling for is autonomy and not self-determination. It is, in any case, too late now to talk about self-determination because what has been done cannot be undone.

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The European Union practises the principle of subsidiarity, which is a principle of social organisation that holds that social and political issues should be dealt with at the most immediate (or local) level that is consistent with their resolution. This should be the crux of governance of a country of 1.4 billion people divided into 28 states and nine Union Territories.

This is precisely what India needs to contain the pandemic, immediate action at the local level, supervised at the state-level and full co-operation at the central level and not the other around. This would be subsidiarity in action, not co-operative federalism. But state autonomy and federalism must be open to discussion in all fields of government action.

—The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York
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