Indian Federalism on the Backdrop of Revocation of Article 370

Indian parliament voted for two resolutions and a law that effectually ended Jammu and Kashmir’s special status and bifurcated the state into two union territories while the state is under President’s rule. Now, the new union territories of Jammu and Kashmir and Ladakh will be ruled directly from Delhi. These actions have raised the fears that the Centre will try to break other states or will take away special status by using its majority in Parliament. Many believe the revocation of special status from Jammu and Kashmir without consulting the local people and political leaders and executing when the state is under president’s rule is an attack on federalism and stain on India’s federal record.
As the government repealed Article 370, Article 371 which has special provisions for other States, has invited some attention, particularly Article 371(A) that allies the state of Nagaland with Union of India. Though Article 371(A) is not under attack immediately, the Centre has pushed through several laws in Parliament discounting the request to be referred to parliamentary committees as many of the amendments had elements that intruded on the federal balance between the Centre and the states as mandated by the Constitution. The developments of Jammu and Kashmir are just part of a larger trend the Parliament has observed. Some of the contentious laws and policies which are put forward by the Centre are,

National Investigation Agency Act:
Apart from the unequivocal terror cases, the National Investigation Agency (NIA) will now have the power to investigate human trafficking, offences related to counterfeit currency, manufacture or sale of prohibited arms, cyber-terrorism and offences under the Explosive Substances Act, 1908. These offences were under the realm of the state police earlier. Moreover, all the powers, duties, privileges and liabilities which state police officers have in connection with the investigation of offences listed under the Act will become available to the NIA as well. As a result, NIA can make arrests directly in the states without having to go through the state police. Consequently, Centre is intruding upon state powers to maintain law and order, which goes against the core values of federalism.

Unlawful Activities Prevention Act:
Amendment permits the Centre to label individuals as terrorists, earlier only organisations could be designated as terrorist. Central agencies can also seize the properties of terror suspects without the prior approval of the state government in writing.

Right to Information Act (Amendment) Bill, 2019:
The amendments have made profound changes to the tenure and remuneration of central and state chief information commissioners and information commissioners. Previously, the chief information commissioners and information commissioners had a fixed tenure of five years or till they turned 65. This tenure will now depend on the prescription of the Centre. The change will apply not just to the chief information commissioner, but also information commissioners at the state level. The changes place the officers under the RTI Act at the compassion of the Centre. The amendments are such that these officers even at the state level could be removed easily by the Centre as it will now regulate the terms of appointment, thus upsetting the federal characteristic of the law.

Dam Safety Bill:
The primary argument against the Bill is that water comes under the state list in the Constitution. In the form of a National Committee on Dams Safety, the Centre is trying to seize the exclusive rights of the states over water. The amendments recommend the establishment of a National Committee on Dams Safety that will control the maintenance and safety of dams.

National Education Policy (NEP) 2019:
The chosen pathway of centralization of education under the PMO is a completely new character in the unfolding story of education. The policy proposes to structurally trump the Centre-State relations, Central and State legislatures adopted statues and regulations. The policy will render the statutes adopted by the parliament and state legislatures ineffective in practice. The Prime Minister (PM) has been given all the powers to envision, steer, coordinate and manage the system of educational institutions for a vast and diverse country like India. This recommendation to centralize under the office of Prime Minister (PMO) the whole system of governance of education in India is a new phenomenon.

In the last session of the parliament, Centre passed those four bills along with put forward for review theNEP-2019. There are elements in those bills and the draft NEP which intrude the states subject as mandated by the Indian Constitution. This is equally impacting the state of Nagaland. Centre is encroaching on states subjects like law and order with power to investigate other offences which were under the dominion of the Nagaland police earlier apart from the terror cases. Similarly, Central agencies can also seize the properties of the terror suspects without the preceding approval of the Nagaland government. Centre can now remove the Nagaland information commissioners at their will. From now on, National Committee on Dams Safety will have a say on the maintenance and safety of dams of Nagaland. On the other hand, the education policy proposes to govern through the Office of the Prime Minister (PMO) the vast Indian system of education of sub-continental size and scope which includes the state of Nagaland. The policy removes the safeguards available against the tendency to centralize the management and administration. With the ever changing dynamics in the parliament, Article 371(A) cannot save the Nagas from most of the bills passed in the parliament including the mentioned bills and policies. The lack of proper interpretation and implementation of Article 371(A) has made it look like a paralysed article with no relevant in the present context except for the line – “that land and its resources in the State belong to the people and not the government.”

These recent steps including the abrogation of article 370 is a clear indication of India pushing us towards a unitary state, abating the federalism in India. People who are silence at the dwindling federalism don’t seem to get the bigger picture. This can happen to any other state, including Nagaland. Article 371(A) has nothing to safeguard the Nagas if Indian government wants to take similar drastic step. The Centre can dissolve a state government, get rid of consultative process, split the state and downgrade its status. It is not imminent now in Nagaland but who knows in future as Centre does not want to continue with the special provisions granted to any community or state in the country. Most disturbing of all, is ‘failure’ to resist the moves and the ‘complete silence’ of the civil society, media and regional parties.

Biplab Ghosh
(biplabbdn@yahoo.com)