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A reality check on "phoren" federalism

A reality check on "phoren" federalism

Author: Arvind Lavakare
Publication: Rediff on Net
Date: July 25, 2000

Ooh la la, the cry for more autonomy to Indian states has now come from Khushwant Singh! Yes, from the same social celebrity whose weekly column mostly dwells on books, bards and bosoms with a contributed "joke" as its own bottom.

In his latest offering of July 16, the chap echoes the belief that "it is wrong to think that giving more autonomy will lead to disintegration of the country.  On the contrary, a truly federal government will strengthen the country's unity.  This has been truly established by the experience of Canada, the United States and Australia."

What is the reality of this "established" experience?

Let us start with the USA whose Constitution, brought about in 1787, is the oldest member of the federal family.  Its federalism is currently being held by some Indians as a model to emulate.

The "attraction" of the US Constitution lies in the very simple method it has adopted for Centre-state distribution of powers.  Thus, the powers entrusted to the federation fall under 18 heads only; the remaining powers belong to the states.

This distribution scheme seemed the ideal federal structure, the ideal autonomy deal that should never have sown the seeds of secession, of America's disintegration as a nation.  And yet, in the cruellest irony of political theory, April 1861 saw 23 American states with a population of 22 million arrayed in war against the nine million inhabitants of 11 states who had seceded and adopted a provisional Confederate States of America.  The issue was the right to continue being "slave states" as opposed to the "free states".  If that bitter four-year Civil War wasn't the result of unbridled autonomy, what was it?

That was the immediate cause of the 13th Amendment to the US Constitution in March 1865.  It abolished slavery -- probably the first epochal step in eroding state autonomy in America.  The following year brought the 14th Amendment granting the right of citizenship earlier denied to slaves.  But several practices prevalent in autonomous states remained obstreperous obstacles to the harmonised integration of the USA as a nation.

Constitutional amendments were not needed to overcome them.  All that Congress did was to use the Constitution's Article 1 Section 7 that says "Congress shall have power...  to make all laws which shall be necessary and proper for carrying into execution the...  powers vested by this Constitution in the Government of the United States".

Another tool of change was Article VI which says, "This Constitution and the laws of the United States which shall be made in pursuance thereof...  shall be the supreme law of the land and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." (An Outline of American History, United States Information Agency, undated).

That vague "necessary and proper" power and the sheer sweep of its fiat have been continually used by American courts to aid and abet the federal cause.  One of the judges there has gone on record to assert that "the Constitution is what the courts say it is".  This judicial trend was initiated by John Marshall who was chief justice from 1801 to 1835.  In McCulloch v Maryland (1819), Marshall stood boldly by the theory that the Constitution by implication gives the government powers beyond those expressly stated.  It was probably the earliest blow to state autonomy.

That unique Constitution-Congress-courts alliance is in fact the way in which the US federal government has cured the nation of its states' "autonomous" warts and wicked ways -- from desegregation in schools (1954) and in buses (1956) to sexual equality (1964).

Probably the most arrogant show of autonomy was the attitude of many states to the 15th Amendment that guaranteed the right to vote.  They found many ways -- whether by a poll ("head") tax or a literacy test -- to circumvent the law.  President Eisenhower's support to Congress resulted in the Civil Rights Act of 1957 authorising federal intervention in cases where Blacks were denied the right to vote.

Today, the federal taxing power has enabled Congress to raise vast sums of money and thereby regulate the economic life of the country, to disfavour local activities like gambling and to restrict the states from interfering with the flow of trade and traffic over state boundaries.  Two examples of this are illuminating.

Until a few years ago, the speed limit on roads was uniformly a maximum of 55 miles per hour throughout the USA.  That was achieved by the federal government threatening to withhold road maintenance funds from states that permitted exceeding that limit or were lax in enforcing them.  (Today, the stipulated maximum speed is 70mph.)

Then there was last year, when a knockout punch was delivered to California State's attempt to exercise its autonomy.  California, being richer, has much better welfare benefits for the indigenous than does Kentucky.  To discourage the poor from moving to California just for welfare, California imposed a "waiting period" of two years before newly migrated people from other states could get on its welfare rolls.  The Supreme Court ruled that this infringed the citizens' constitutional rights to live where they wanted and struck it down.

But those same rights had earlier got a bizarre, humorous twist when a provision in the Federal Energy Act, 1992, invaded citizens' loos by laying down that all homes built since 1996 should install such plumbing fixtures as would ensure the stipulated GPF ceiling of 1.6 gallons per flush! Some autonomy that!

No wonder even Americans have veered to the view of Dr M P Jain, author of books on federalism, that "Over time, the Centre has grown into a colossus and dwarfed the states."

Let's now come to Canada.  The story of its Quebec province's long -- but as yet unsuccessful -- effort to secede should, without ado, quell any further discussion on the belief that autonomy doesn't lead to a federation's disintegration but makes it stronger.  But let us respect Khushwant Singh's age, if not his acumen.

The scheme of distribution of powers in Canada between the Centre and the provinces was established by the British North America Act, 1867.  It laid down 30 specific subject heads for central legislation, 16 exclusive ones for the provinces and some subjects such as "agriculture" were put on the concurrent list with supremacy in the Centre in case of a conflict between a central and a provincial law.  The Privy Council was for long the ultimate interpretative judicial organ until its recent replacement by the Supreme Court as the final arbiter.

The Privy Council had once held that all federal laws would be valid if they dealt with national or general aspects of any subject matter even though the subject might appear to be within the provincial list.  Had this view been consistently applied, the Centre in Canada would have been extremely powerful -- as happened in the USA with the "necessary and proper" clause.  But being over-influenced by the aspirations of the French-speaking minority concentrated in Quebec, the Privy Council over the years interpreted the scheme of distribution of powers to shift the balance in favour of the provinces.  Efforts over the last few years are however, being made by the Supreme Court to restore that balance in favour of the Centre.

Till that is done, the Canadian Federation will have to live with the stigma of the constitutional authority, Bora Lakin, that "the story of the trade and commerce power is the saddest legacy of the Privy Council adjudication".  What makes it all ironical is that though the Centre was designed to be strong, it has been restricted in dealing with socio-economic problems, having no power to regulate the supply and price of even the necessities of life.  And probably a national shame is the fact that, until last known, Canada could not implement those parts of its internationally signed treaties as encroached on subjects assigned to the provincial field.

Lastly, there is Australia, which joined the family of federations in 1900 with the Commonwealth of Australia Constitution Act.  That Act allotted 40 matters for the central parliament's legislation, but some of them were such on which the states could make laws concurrently, subject to the prevalence of the central law to the extent of inconsistency in the state law.

Judicial interpretation has, over the years, permitted the expansion of the Centre's powers.  And the high courts Down Under have done that liberally and generously.  Yet, the feeling has persisted that the Centre lacks adequate power to deal with peacetime socio-economic problems.

The conclusion then on this reality check is clear: If the Centre in Delhi is dominant, even as the states can legislate exclusively on 61 subjects and concurrently on 52 matters, it is because the men who fashioned our country's Constitution had done their homework in the matter of "phoren" federalism.  They had learnt a lot from the pluses and minuses encountered in the governance of the USA, Canada and Australia.

It is the states in India that haven't grown up to the modern world of federalism.  Despite a generally miserable track record in day-to-day administration or in law-and-order or civic affairs -- subjects in which the Centre just cannot and does not poke its nose -- our states are issuing the call for more autonomy.  Autonomy for what? For running personal fiefdoms?

Tailpiece

Federal America's ceiling of 1.6 GPF (7.3 litres) in home toilets may seem a ridiculous infringement of state autonomy and individual liberty, but only if you didn't know that the new plumbing standards would save the Detroit metropolitan area alone 412 million gallons of water annually.  That difference in perception spells the difference between a comical Khushwant Singh and a US congressman.
 


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