Dr. Rekha Oleschak Pillai is Senior Research Fellow at the Institute of Federalism, University of Fribourg. Her current research focuses on comparative constitutional law, public international law and intersection between law and development.
Abstract
Does contestation by subnational units help in maintaining or even enhancing federal practices? This contribution examines recent developments in India, specifically the role of southern states in questioning the practice of federalism, in particular against increasing centralisation. It argues that the southern states play an important role in challenging actions by the federal government and thus also highlight the inequities of the centralised Indian federation and lack of institutionalised fora for intergovernmental relations and centre-state dialogues.
Introduction
In January 2020, the Kerala State Assembly[1] passed a Declaration that it would not implement the Citizenship Amendment Act (CAA) and the related National Register of Citizens (NRC). This was a reaction to the adoption in December 2019 by the Indian Parliament of the Citizenship Amendment Act (CAA), which was passed in a noticeably short span of time and with little debate in Parliament. The main components of which were the inclusive provisions for particular groups of people, which by nature excludes other groups. The 2019 Amendment to the CAA provides that migrants from three countries, Pakistan, Bangladesh, and Afghanistan and belonging to listed religions (Hindu, Jain, Buddhist, Sikh, Parsi and Christian) who have arrived before 31 December 2014 would not face prosecution for illegal immigration and would receive favourable /fast track treatment towards citizenship. The amendment thus excludes people who arrive after the cut-off date as well as those who are from other neighbouring countries like Sri Lanka, Tibet, Myanmar or Nepal and in particular people who are of a Muslim religious background. The enactment led to widespread protests and a flood of litigation before the highest court, interesting is however that the Act was not only being challenged by various groups and individuals as a violation of the guarantees of fundamental rights (equality and non-discrimination) under the Indian Constitution, but also by the Kerala state Government, the first state government to do so. The case against the CAA at the Supreme Court challenges the constitutionality of the CAA under Art. 131 of the Constitution (a provision giving the Supreme Court original jurisdiction over disputes between states and centre). In the wake of the Kerala State Assembly’s declaration and the challenge before the Supreme Court, several states have passed resolutions against the CAA. For example, a similar step was taken by the State of Tamil Nadu, with the State Assembly passing a resolution, urging the Centre to repeal the CAA to uphold secular principles enshrined in the Constitution. The issue of citizenship is clearly a federal competence. So why are the states resorting to such measures of dissent? Could this be an indication of resistance to ongoing centralisation under the current Bharatiya Janata Party (BJP) led Government at the Centre?
Undisputedly, the current BJP-led Government at the Centre has increasingly been successful in weakening the federal guarantees of the Constitution, and a surprising number of legislations and constitutional amendments undermining the federal order have been passed in parliament, with little opposition. The southern states of India – Kerala, Tamil Nadu, Andhra Pradesh, Karnataka and Telangana are linguistically, culturally and politically very different from the so-called “Hindi Belt”. From a federal perspective, the southern states often choose divergent paths from the northern Indian states, partly owing to different political parties in power, but partly also because of cultural divergences. In this contribution I argue that one can find several examples of states’ resisting the Centre’s centralising tendencies, in particular, I find that the southern states have been at the forefront in challenging the Centre.
The Theory of Contestatory Federalism
As a starting point, I am using James A. Gardner’s article, The Theory and Practice of Contestatory Federalism (2018)[2]. Using the Federalist Paper No. 51, Gardner explores the idea of contestatory federalism as espoused by Madison. Gardner examines practices of contestatory federalism, i.e. methods deployed by subnational units to influence national policy making and to resist, undermine, or thwart exercises of national power with which the subnational unit disagrees. He finds that the tactics used by subnational units range from outright defiance to cooperative and highly integrated techniques such as voluntary consultation and negotiation. He argues that subnational units sometimes use tactics that lie outside the bounds of constitutionally contemplated methods of intergovernmental contestation, thereby altering the constitutionally prescribed balance of power of the federal state. Of interest here is the practice of the subnational units in India (which were not part the study by Gardner) and to reflect which of the tactics identified by Gardner are used as methods of contestation.
“Hindi mein bolo”[3]: Resisting Linguistic Centralisation
Given India’s vast linguistic diversity[4] it is not surprising that the “language issue” was one of the most highly debated questions during the drafting of the Indian Constitution between 1947 and 1950. One of the most contentious issues, was whether there should be a national language and if this should be Hindi. The compromise was to retain English (for 15 years) and Hindi as official languages in addition to the regional languages. In 1956, the states were reorganized on the basis of language and the creation of several new states in the last decades also occurred on the basis of language.[5] When the transitional period of English as an official language came to expire in 1965, there were widespread protests, which led to continuation of English as an official language.
The latest saga in the language discussion started off in 2022 when the “Committee of Parliament on Official Language”, whose mandate is to “review the progress made in the use of Hindi for the official purpose of the Union” recommended that the medium of instruction should mandatorily be Hindi, and local languages, in all technical or non-technical educational institutions including central universities.[6] This was predated by an announcement in 2020, through a proposal by the National Educational Policy recommending that Hindi be used as a compulsory language in primary schools. What the Committee thus recommends is the replacement of English in state run institutions by Hindi in those states where medium of instruction is another local language. The conflict resolves around whether the “Hindi imposition” would mean introducing disadvantages to children in state-run institutions as the knowledge of English is seen as a better guarantor of upward social mobility.[7] What the Committee also recommends is that the propagation of Hindi should not only be a matter for the central government but also a constitutional obligation for state governments.[8] There were loud protests from the state of Tamil Nadu[9] against “Hindi Imposition”[10] which has already seen strong resistance to a weakening of the language-based identity, seen to be an integral part of the Dravidian culture.
Personal Photo – Copyright to Joby and Anandu
The official classification of languages has implications for financial resources and cultural outreach of the languages, with Hindi and Sanskrit receiving the largest amount of funds from the government. While several of the northern states have Hindi as an official language, it belies the fact a large part of the population does not speak Hindi as a first language, but variations of other languages, included in the language surveys as “mother tongues”[11].
Given the constitutional competence allocated to states to determine the use of language and education policy, the imposition of Hindi goes against the very fundamentals of a multi-lingual federal state. Yet another development that has created recent furore, especially in Tamil Nadu is the decision by the All-India Radio to no longer announce itself during broadcasts as All-India Resource but only by its Hindi name as “Akashvaani”. The creeping imposition of Hindi in educational and other state institutions constitutes yet another step towards the agenda of a “monolingual” India and towards Sanskritization. In yet another challenge, the Minister of Health of Kerala recently announced that Kerala would not rename the National Health Mission units in the state to “Ayushman Arogya Mandir” (Temples for health and longevity in Hindi) as required by the Centre’s directive. The state alleges that this refusal has led to the Centre withholding funds due to it.
These can be seen as examples of subnational contestation that fall within Gardner’s list as “defiance” as well as “withholding cooperation”.
From a normative standpoint, as long as Hindi is used for political purposes[12] to impose a “national” identity in an extremely diverse country, the fear of forcible language imposition remains. It remains to be seen how long the southern states hold out on this issue.
All the King’s Men: The Governor in the federal setup
The position of the Governor sits uncomfortably in the Indian federal structure and is a continuation of past colonial heritage, where the Crown was represented by a gubernatorial representative, whose allegiance clearly lay with the Crown. In Independent India, the gubernatorial tradition was continued, with states having a governor, whose appointment is decided by the Centre and who is bound to the instructions and dictates of the centre. The misuse of the role of the Governor is not new in Indian political history. On 31 July 1959, on the advice of the Union Cabinet, led by Prime Minister Nehru, the President invoked Article 356 of the Constitution to dismiss Kerala’s elected Chief Minister E. M. S. Namboodiripad and his cabinet and ordered the dissolution of the State Assembly. This was based on the recommendation of the Governor and would go down in history as a blot on Nehru’s reputation as a statesman.[13]
While in the past, the Supreme Court has assured that the allegiance of the Governor lies with the Constitution and not to the ruling Executive, it is unsurprising that the Governor rarely contradicts positions of the Centre. In many cases, governorship is a post-retirement benefit for high-ranking government officials or politicians. The governors hold ex-officio titles and positions, in many state-run universities, they hold the position of the Chancellor of the University, the official head of the University, although the day-to-day head is the Vice-Chancellor, usually drawn from ranks of academia.
Governors are usually invited for the ubiquitous “ribbon cutting” ceremonies and the like and evoke little or no controversy. This is however not the case as far as the current Governor of Kerala is concerned: Arif Mohammed Khan took up the post in 2019, he is a member of the BJP, having started out his political career with the Congress Party. Since his appointment he has been at the forefront of several controversies. The most recent one concerns the appointment of Vice-Chancellors and other key positions of universities.[14] The Governor initially asked Vice-Chancellors of eight universities in the state to resign within 24 hours, the concerned approached the Kerala High Court, which stated that the persons can continue in their respective roles and can only be terminated in accordance with due process and cannot be compelled to resign. The Kerala government has termed the governor’s move as “an encroachment on the powers of a democratically elected government”.[15]
According to recent newspaper reports, 11 Universities in Kerala have been notified by the Governor that their Vice-Chancellors have not been selected according to the Central Government Regulations and they need to form committees to search for new Vice-Chancellors. While this might seem rather non-controversial, it becomes problematic when taken in the context of current political developments of governmental interference in academia, where several universities have seen interference in terms of academic appointments as well as academic content.
In response to the controversial move by the Governor, the Kerala Assembly passed a Bill[16] to remove the Governor as the ex-officio Chancellor of universities. However, the Governor must give his assent to the Bill for it to become law, which unsurprisingly has been refused by the same governor who is the target of the Bill.
The Kerala Government approached the Supreme Court against the governor, with the challenge that he had been sitting on various Bills, including the one on universities for the last two years[17]. This brings us to the issue of the role of the Governor in giving assent to state legislation, which is one of the most important tasks of the Governor.[18] Under Article 200 of the Constitution, the Governor has several options when presented with a Bill for assent. The governor could assent to the Bill, withhold assent to the Bill, reserve the Bill for the consideration of the President, or return the Bill to the State Legislature for reconsideration. The time frame for action is not explicitly mentioned, except in the provision that returning the Bill to the state legislature must be done as soon as possible.
The issue of the Governor not responding to the Bill and thus inhibiting the functioning of the democratic legislative process seems to be a strategy which also other states are being faced with. Not only Kerala, but also Tamil Nadu, Telangana, Punjab and Chhattisgarh have thus been grappling with the issue, of which Punjab, Kerala and Telangana have approached the Supreme Court.[19] The Supreme Court handed down its judgement concerning the Governor of Punjab in November 2023 and unequivocally stated that the Governor cannot keep sitting on a Bill indefinitely.[20]
The above issues provide us with clear examples of Gardner’s “withholding cooperation” and “invocation of third-party coercive processes”.
It’s the money honey: Fiscal federalism as a point of conflict
In what can be termed an unprecedented move, some state governments are resorting to using tools of democratic dissent used by citizens against the state. It is not an unusual sight in New Delhi or other state capitals to see large groups of people protesting against the government. Unusual is the fact that these are representatives of the state governments of Kerala, Karnataka, Telangana supported by other states like Delhi and Punjab, who have literally pitched their tents in front of the federal parliament buildings[21]. One subnational politician even mooted “secession”.[22] Let us examine the reasons for the state governments to march to Delhi to “protect federalism” and against “tax injustice”. First, the states allege increasing centralisation as well as an “unjust distribution” of revenues. Second, they find that borrowing limits imposed on states restrict their fiscal capacities.
In line with the centralised nature of the Indian federal system, the fiscal allocation is also extremely centralised. While there are many historical reasons advanced for this, it is completely out of sync with the realities of the allocation of competences. An optimal fiscal allocation would be based on allocation of functions and the necessary funds to carry out these functions. While the constitution foresees a large number of functions for the states, the funds are largely in the hands of the federal government. The vertical and horizontal distribution of collected revenues is decided by the Finance Commission, a constitutional body that is set up for a five-year term by the federal government. The composition of the Finance Commission and its terms of reference are determined by the federal government. This situation as such is nothing new and has been a point of contention also in the past. What is different is that states have lost control of one area of taxation which they had earlier. With the introduction of the national Goods and Services Tax in 2017 (GST, akin to value added tax in other jurisdictions), the revenues that accrued to the states from the earlier sales taxes has disappeared. Although the GST system foresees allocations for the states, the states themselves have no say in determining the subnational components of the GST. Although a compensation mechanism as a provisional measure was introduced in the GST, this is no longer being allocated. This has further exacerbated the disparity between the fiscal powers of the federal government vis a vis the states. Another factor has been the dismantling of the Planning Commission and the National Development Council and their replacement with the NITI Aayog, which was aimed at ushering in an era of “cooperative federalism”. The results have however been even further centralisation.[23]
Additionally, southern states find that the tax revenues that are collected in their states are distributed unjustly. Specifically, they argue that instead of just using “population” as a criterion of distribution, other factors like whether the states are making progress on human development indicators and sustainable development goals etc. should be taken into consideration. The southern states perform much better than their northern counterparts on human development indicators as well as in terms of raising taxes due to higher economic growth levels. Southern states (most likely to increased education and workforce participation of women) also have low birth rates, Kerala for example, has a birth rate below 2, i.e. below replacement levels. The last Finance Commission relied on the 2011 census data to determine population (while earlier Finance Commission calculations were based on earlier census data). Thus, a decline in population also results in southern states receiving less from the federal pot. Isn’t this a problem that arises in every federal country? Generally speaking, yes, all federal countries have implemented systems of vertical and horizontal distribution of resources, with the aim of ensuring a more-or less equitable level of economic and human development across the regions. In India, the situation seems increasingly tense, as southern states, see themselves as being disadvantaged for having implemented federal directives (in the 1970s, for example to reduce population growth).
The second grievance raised by southern states is that of limits imposed by the centre on borrowing. In a strongly worded letter to the Union Finance Minister in July 2022, the State Finance Minister of Kerala, K.N. Balagopal, called for “urgent intervention in an issue that threatens to seriously compromise the federal-state financial arrangements envisaged in the Constitution of India”. The letter argues that the constitutional limits on borrowing as interpreted and imposed by the Union according to Article 293 (3) are not in line with the constitution.[24] In the same matter, Kerala has filed a suit in the Supreme Court challenging the federal government’s limitations on borrowing. The state’s case argues that the federal government has imposed a “Net Borrowing Ceiling (NBC)” on the state in a way to limit its borrowings from external sources, including on the open market, thus restricting its ability to finance the state’s needs and that this is unconstitutional. The last hearing was on 13th February 2024, where the Supreme Court directed both the state and the federal government to hold talks.[25]
Another reason for fiscal discord are the so-called Centrally Sponsored Schemes (CSS), these are national level development schemes, which are funded to a large extent by the federal government, but which also require state contributions. Many of these are seen as being tools of favouritism of the federal government. The “Delhi Chalo” (Lets go to Delhi) protests by southern state governments mark a new beginning in centre-state relations, one which distinctly highlights the lack of institutionalised mechanisms for (vertical) dialogue between the centre and the states as well as between the states (horizontal) in the Indian federal setup.
In the matter of fiscal federalism, subnational units have thus tried to use anything from “secession” (albeit calls for secession), “defiance” (refusal to comply, uncooperative implementation etc). They have also used “third-party coercive processes” and “withheld cooperation”. Further, they have tried to influence federal domestic policy making by mobilization of popular opinion and to a limited extent tried to exploit boundary-crossing party connections.
Conclusions
I have argued that centralising tendencies within Indian federalism are being opposed by the southern states more than by the other states. While one can question whether this is only due to having different political parties (non-BJP) or due to cultural and linguistic differences, I am of the view that the very act of challenge is a sign of resistance, that provides hope for the Indian federal polity. Gardner’s article on contestatory federalism highlighted the risks for the constitutional scheme through contestation, however, in the Indian federal setup, the contestation by sub-national units seems essential for upholding the constitutional scheme, specifically the federal structure. Having demoted the state of Jammu and Kashmir to a Union Territory and by constantly harassing the elected government of Delhi, the BJP-led centre has shown that it has no qualms about interfering or revoking the federal guarantees of the Constitution. The jury is out on which states would be the next targets for such moves, including imposition of emergency rule. India will go to the polls in 2024 and the electoral verdict holds much in store not only for India’s future as a constitutional and secular democracy, but also for the maintenance of its federal spirit and structure.
Suggested citation: Oleschak Pillai, R. 20234. ‘“The Southern Challenge”: Contestatory Federalism in India’, 50 Shades of Federalism
Endnotes
*(the title of this piece is inspired by the book chapter with the same name in “India after Gandhi” by Ramachandra Guha, 2007, Pan Macmillan)
[1] Kerala is a state situated at the southernmost part of India with a unique geography as well as political culture. The population consists of Hindus, Muslims, Christians and indigenous peoples (Adivasis), most of the population speaks Malayalam. It currently has a government led by the Communist Party of India (Marxist). The Kerala Assembly is the state parliament, the Executive consists of the Chief Minister and Cabinet of Ministers, here termed as the Kerala Government. The Governor is an appointee of the Centre.
[2] Gardner, J.A., 2018. The Theory and Practice of Contestatory Federalism, 60 Wm. & Mary L. Rev. 507 (2018), https://scholarship.law.wm.edu/wmlr/vol60/iss2/4
[3] “Hindi mein bolo” translates as speak in Hindi.
[4] According to one report, in addition to the 22 official languages outlined in the constitution, the Peoples Linguistic Survey of India has identified 780 languages of which around 50 have been considered to have gone extinct in the last 50 years. According to other scholars, the official census does not actually map the existing linguistic varieties and undercounts the number of languages.
[5] The creation of Telangana, Chhattisgarh, Jharkhand, Uttarakhand are exceptions, these were not established based on languages.
[6] Hindi, Local Languages as Medium of Instruction in All Institutions, Recommends Shah-Led Panel, The Wire, 10 Oct 2022, https://thewire.in/government/hindi-local-languages-as-medium-of-instruction-in-all-institutions-recommends-shah-led-panel
[7] Kanchiah Iliah Sheperd, Why Hindi Imposition is a Bad Idea and Hurts the Poorest Most, Newsclick, 18 Oct 2022, https://www.newsclick.in/why-hindi-imposition-bad-idea-hurts-poorest-most
[8] Adrija Bhadra, Hindi Imposition: Another Attack on States’ Autonomy, Newsclick, 18 Oct 2022, https://www.newsclick.in/Hindi-Imposition-Another-Attack-States-Autonomy
[9] National Language Debate: What Does It Mean for Indian Pluralism? EPW Engage, https://www.epw.in/engage/article/national-language-debate-what-does-it-mean-indian
[10] Radhakrishnan R. K. A history of resistance: Tamil Nadu’s struggle against Hindi imposition, The Frontline 18 May 2022 https://frontline.thehindu.com/cover-story/a-history-of-resistance-tamil-nadu-struggle-against-hindi-imposition/article65428904.ece
[11] Narayan Hari, India a Land of Many Tongues, The Hindu, 7 Aug 2017, https://www.thehindu.com/thread/arts-culture-society/india-a-land-of-many-tongues/article19445187.ece
[12] Those Who Do Not Speak Hindi Should Leave India: UP Minister Sanjay Nishad, The Wire, 29 Apr 2022, https://thewire.in/rights/hindi-sanjay-nishad-india-uttar-pradesh
[13] Ramachandra Guha, India After Gandhi, p. 281 f.
[14] Governor versus Government, Constitutional Quandary in Kerala, Deccan Herald, 2. February 2024 https://www.deccanherald.com/opinion/governor-vs-government-constitutional-quandary-in-kerala-2878190#:~:text=Kerala%20Governor%20Arif%20Mohammed%20Khan%20and%20Chief%20Minister%20Pinarayi%20Vijayan.
[15] Kerala Governor Versus Vice-Chancellors: ‘No One Can Be Asked to Quit,’ Says HC, The Wire, 25 Oct 2022 https://thewire.in/law/kerala-hc-university-arif-mohammed-governor-vice-chancellors
[16] The University Laws (Amendment) (No. 3) Bill, 2022, Kerala Legislative Assembly, Bill No. 150, passed by the state assembly on 13 Dec 2022.
[17] State of Kerala v. Honorable Governor for state of Kerala and Others, Writ Petition (Civil) No.1264/2023, Supreme Court of India.
[18] Paras Khaitan, Judicial Review of Governors’ Delay in Assenting to Bills – a Response, 11 March 2023, https://indconlawphil.wordpress.com/2023/03/11/guest-post-judicial-review-of-governors-delay-in-assenting-to-bills-a-response/
[19] Kerala Government Moves SC Against Governor for Keeping Bills on Hold Indefinitely, The Wire, 3 Nov 2023, https://thewire.in/law/kerala-moves-sc-governor-arif-mohammad-khan-bills-hold-indefinitely
[20] State of Punjab v. Principal Secretary, Writ Petition (Civil) No 1224 of 2023, Supreme Court of India https://main.sci.gov.in/supremecourt/2023/44896/44896_2023_1_19_48220_Judgement_10-Nov-2023.pdf
[21] Karnataka Congress Calls For Chalo Delhi: Why Southern States Are Protesting Against Centre, The Business Outlook, 7 Feb 2024, https://business.outlookindia.com/news/karnataka-congress-calls-for-chalo-delhi-why-southern-states-are-protesting-against-centre
[22] “South may seek nationhood if funds are not distributed equally: Karnataka Congress MP D.K. Suresh”, The Hindu, 1 Feb 2024, https://www.thehindu.com/news/national/karnataka/dk-suresh-stokes-row-saying-southern-states-could-demand-separate-country-if-funds-are-not-properly-distributed/article67801282.ece
[23] Aiyar and Tillin supra.
[24] K.N. Balagopal, Letter dated 22.07.2022, Re: Regarding Borrowing consent Under Article 293(3) of the Indian Constitution (on file with the author).
[25] Mukund P. Unny, The severe erosion of fiscal federalism, 7 Feb2024, The Hindu.
Further Reading
Aiyar Y. & Tillin L. 2020. “One nation,” BJP, and the future of Indian federalism, India Review, 19:2, 117-135, DOI: 10.1080/14736489.2020.1744994
Swenden, Wilfried. 2019. ‘Language Policy in India: An Unstable Equilibrium?’. 50 Shades of Federalism. Available at http://50shadesoffederalism.com/diversity-management/language-policy-in-india-an-unstable-equilibrium/
Sengupta Papia.2017. ‘Impulsive Imposition: Language and politics of majoritarianism in India’, Economic and Political Weekly (Engage), Vol. 52, Issue No. 52, 30 Dec, 2017
Sharma, CK. 2022. ‘Concessionary Federalism as a Tactical Choice to Facilitate Constitutional Change—A Lesson from India’s Indirect Tax Reforms ‘, 50 Shades of Federalism. Available at: http://50shadesoffederalism.com/case-studies/concessionary-federalism-as-a-tactical-choice-to-facilitate-constitutional-change-a-lesson-from-indias-indirect-tax-reforms/
Singh, M.P. 2016. The Federal Scheme, in Sujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta(eds) The Oxford Handbook of the Indian Constitution (Oxford University Press)
Choudhry S. 2016. Language, in Sujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta(eds) The Oxford Handbook of the Indian Constitution (Oxford University Press)
Thiruvengadam A. 2017. The Constitution of India: A Contextual Analysis, pp.71-100 (Bloomsbury)