Shreyas Jayasimha

In the recent past, India has seen an increase in sub-national movements for regional autonomy some of which have resulted in the creation of new states. It is therefore apposite to look more closely at the constitutional framework for federalism in India. Janaagraha Lunch and Learn, for the month of July, focused on ‘comparative federalism,’ presented to the team by Shreyas Jayasimha, a legal practitioner and expert in constitutional law. It would briefly outline the unique history of federalism in India as compared with the rest of South Asia, the constitutional mechanism for the creation of new states in India, and the provisions for dispute resolution amongst states with reference to prominent decisions of the Supreme Court. Sudeep S, our Advocacy Associate talks about what he learnt this lunch time.

Across the world, different countries have adopted different systems of Government. Some countries have adopted a centralised form of Governance where the Central Government is all powerful and the states or provinces draw their powers from the orders of the central Government. Others have adopted the federal form of Government wherein the constitution grants powers to the states or provinces and the centre cannot deprive the states provinces from these powers. What makes a country decide to adopt a particular system? At Shreyas’s Janaagraha Lunch n’ Learn for July, we focussed on how historical factors influenced our decision to go with our current constitution, especially the Government of India Act, 1935.

Shreyas spoke of how federal systems are more likely to accommodate the people’s need for identity while still binding them into one constitution, by giving examples of how the States Reorganization Committee went about reorganizing the states in the 1950’s. The States reorganization committee couldn’t have done a better job than what it did. At a time when the country was still taking infant steps in democracy, the committee reorganised the states on linguistic basis and yet retained them in India. In comparison, countries like Srilanka and Afghanistan are still facing challenges. In Srilanka the constitution created a

unitary form of Government which possibly didn’t take into account the felt needs of its people. Similarly in Afghanistan, where despite it being a federal republic, it has not able to get its people into its fold.

Shreyas also discussed the role of Judiciary in maintaining the Federal Structure. Though India has been a fairly successful federal democracy, there have always been threats to federalism, mostly in the form of abuse of Art 356(or Presidents’ Rule) and other Emergency Powers in the Constitution. However, Indian judiciary has been the vanguard of our federal edifice. It has ruled definitively in favour of federalism in two landmark cases. Basic structure theory of Constitution – laid down as a result of Keshavananda B

harti case and the stringent conditions for the valid exercise of Art. 356 – pronounced as a result of S R Bommai case, largely restrict vindictive and malicious use of Art. 356 by the central government.

We also discussed the provisions in the constitution that promote Federalism. The constitution of India lays down explicit provisions that make room for resolution of conflicts between states, which are to be expected in a federal democracy. Articles 262 and 263 make provision for the redressal of disputes over river water and creation of an Inter-state council to resolve any other disputes that may have risen between the states respectively.

The session ended with an intense question and answer session. The discussion revolved around how federalism can be improved and enhanced. Could we, for example, revisit the emergency provisions in the Indian constitution considering that this is perhaps the biggest threat to federalism in the country? What are the steps involved in moving to far more federalised structure?   The main thing this would involve is greater financial autonomy to the states. However, improving federalism through the constitution, said Shreyas, is a task best suited to the judiciary.

Shreyas Jayasimha read law at NLSIU, was a Chevening Scholar at the University of Warwick (UK) and has been a lawyer for over 10 years practicing in areas including constitutional law, civil and commercial law, company law, intellectual property, private international law and technology law. He is an active member of several international professional organizations including ASIL, ISIL, LCIA, IBA and is a frequent speaker on issues pertaining to dispute resolution. He is currently partner at AZB & Partners, Bangalore

Janaagraha Lunch and Learns are conducted monthly on issues of interest to both the organisation and the staff. Contact us at communications@janaagraha.org for more details.