I deem it a privilege to be invited to deliver the fifth Krishan Kant Memorial Lecture. There are many ways of recalling the memory of the late Krishan Kantji; each of these is equally valid. To most, it would be sufficient to remember him as a former Vice President of India, a former Chairman of the Rajya Sabha, a Governor of eminence, an active and innovative parliamentarian and a public figure of note.

This would not do justice to the totality of work.

Krishan Kantji’s concern for civil liberties and fundamental freedoms was evident in his work as the founding General Secretary of the People’s Union for Civil Liberties and Democratic Rights. He exemplified the pledge of the Servants of the People Society: to be a ‘national missionary for the service of the motherland’.

Shri Krishan Kant was an ardent believer in the importance of good governance. He had the unique experience of seeing the federal structure of the Republic at work at both the centre and the state levels. He said on one occasion that ‘while bad politics may impair good governance, good politics is an essential requirement or the context in which good governance becomes possible’.

It follows that a good structure is essential but not sufficient guarantee for good governance; also that the citizen cannot be oblivious to the nature and content of politics, particularly when it threatens to deviate from norms of goodness.

The health of the polity thus needs to be assessed on both counts.

We are fortunate, ladies and gentlemen, in being blessed with a structure of governance suited to accommodate the diversity of our nation and the multiple identities of our people.

The architect of the Constitution, Dr. B.R. Ambedkar, accurately described the nature of our political structure. ‘Though India was to be a federation’, he said, ‘the federation was not the result of an agreement by the states to join in a federation. Not being a result of an agreement, no state has the right to secede from it. Though the country and the people may be divided into different states for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source’.

Thus the creation of the Indian ‘federation’ has been a top down, rather than a bottom up, process. The states are the end product, not the initial impulse, of the federating process. For this reason, the Constitution-makers chose to define India as a Union of States; the word federation itself finds no mention in the Constitution.

This approach did not develop in a vacuum and bore the imprint of the last phase of British rule. The intent of the Government of India Act 1935, which formed the basis of our Constitution, was ‘to hold India to the Empire’ rather than to expedite the handover of power. Its structure of a Federation based on the union of provinces was intended to create powerful provincial leaders who, as the historian Bipan Chandra has noted, would ‘safeguard their administrative prerogatives and would, therefore, gradually become autonomous centres of power’ and thus weaken the central leadership.

It was for this reason, and with a view to overcome this deficiency, that the Constituent Assembly crafted a Constitution that avoided, as Ambedkar put it, ‘the tight mould of federation’ and was instead ‘both unitary as well as federal according to the requirements of time and circumstances’.

This requirement of circumstances played itself out in the following decades. The first period, till about 1988, was aptly described as ‘blood pressure at the centre, and anaemia at the periphery’. Thereafter, a reverse process emerged and by mid-to-late 1990s concern had turned to symptoms of fragmentation.

II

Half a century on, some questions about federal functioning do arise:

• To what extent has the structure sustained itself?
• Has politics helped or hampered it?
• What correctives, if any, are now deemed essential?

The short answer is that the structure has evolved with democracy and federal practice reinforcing each other to an extent that the Constitution-makers may not have anticipated. This has resulted in new challenges that must be faced. Fortunately, the Constitution itself is in a position to provide most of the correctives. The great imponderable is the willingness of the system to seek them.

Any observer of the Indian scene would concede that the constitutional framework become the main vehicle for giving expression to regional, linguistic and other sub-national identities of our people. The reorganisation of states, creation of linguistic states, recognition through statehood of regional, ethnic or environmental uniqueness and creation of a third tier of local government are instances of the deepening of the regional and local structures of governance. These are no mean achievements.

In a similar manner the expression of multiple identities has been sought, with varying degrees of success, through the actualisation of rights guaranteed in the Constitution.

Each of these has been generally (though not exclusively) attained through broadly democratic processes. It has been furthered by the regionalisation of the political party system. There were 53 political parties in the first general election and 14 of these were national parties; in the 2004 election, 230 parties participated and only 6 of these were in the national category. A direct result of this has been the dawn of coalition politics.

This regionalisation has also induced a balkanisation of the mind that has impacted adversely on questions that transcend local and regional horizons.

Side by side, however, is the economic integration of the country with the unity of the market providing a national cohesive of substantial dimensions.

The dynamics of politically-induced change, and economic imperatives, produced contradictory results. On the one hand, universal franchise brought forth local elites of caste and class whose interest groups sought to capture the instruments of power; on the other hand the 73rd and 74th Amendments has allowed women, scheduled castes and scheduled tribes to begin to shake up the local power structures.

As a result, the structure visualised for the smooth functioning of the Centre-State relationship has often been stressed. One reason for this is the inherently asymmetric nature of the relationship particularly in the case of fiscal arrangements and transfers between the Centre and the states. A significant quantum of financial devolution from the Centre to the states comes through mechanisms that were not envisaged in the Constitution.

A further complication is the fact that taxation powers of the Central Government cover subjects that have significantly boosted Central tax revenues whereas state tax revenues have been relatively inelastic. Nor is fiscal devolution to the third tier any better and the states behave in a similar fashion with regard to Panchayati Raj institutions.

Other points of stress relate to what are known as the ‘emergency provisions’ of the Constitution. The most famous of these is Article 356 that, in the view of many observers, has been ‘used, abused, misused and overused’. On the other hand, instances in which the Union has actually discharged its ‘duty’ towards states in terms of Article 355 are hard to come by. Other questions relate to competences, to the methodology for the deployment of central forces, role of Governors etc. The jurist Fali Nariman is critical of the trend in the judiciary to lean on the side of ‘a strong centre’ and has advocated ‘new judicial thinking on the subject of Indian federalism’ focused on more equal rights (financial and political) for the states.

III

The Indian federal practice is not merely a theoretical issue. It has emerged as one of the most important vehicle for managing our enormous diversity, enabling expression of the genius of our people and running the nuts and bolts of a modern nation state. We have innovated and adapted the federal model to our unique needs. However, pressing challenges remain and three of these need to be mentioned here:

Firstly, the most important challenge is instituting means of conflict resolution among the various vertical and horizontal levels of the state. The Constitution provides under Article 263 for the setting up of an Inter-State Council. Its mandate though is primarily deliberative, advisory and recommendatory and the experience of its functioning in arbitration and conflict resolution has not been encouraging. The judiciary has tended to refrain from intervening in inter-state and Centre-state disputes, leaving it to the polity to politically mediate and resolve such disputes. This has become a very difficult, if not an impossible task, especially when different political formations are at the helm of the administrative units that are party to the dispute.

Secondly, Indian federalism is increasingly competitive at the economic and fiscal level. Allegations of political considerations influencing the quantum of financial transfers from the Centre to the State Governments have been made. Some have even questioned the constitutional division of the powers of taxation. International Grants-in-Aid and competitive seeking of investments by State Governments have queered the pitch. The challenge of placing fiscal transfers in a transparent and rule based framework is pressing. The nature of central intervention in reducing the debt of State Governments and correcting developmental imbalances should also be addressed. It is hoped that the 13th Finance Commission, constituted in November 2007, would suggest solutions to these grievances.

Thirdly, the devolution of functions, finances and functionaries to Panchayati Raj institutions has been, in the words of Minister Mani Shanker Aiyar, “uneven, fitful and subject to reversal”. Fifteen years have passed since the 73rd and 74th Constitutional Amendments and the time has come for both the Central and State Governments to deliver on their pledges of decentralization and grassroots empowerment.

IV

A prerequisite for the satisfactory delivery of these and other correctives is what Shri Krishan Kant called ‘good politics’. The problem had been anticipated by Dr. Ambedkar. I can do no better than to recall his words:

‘The working of the constitution does not depend wholly upon the nature of the Constitution. The constitution can provide only the organs of the state such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the state depends are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their parties will behave?’

Where do we stand today? There is a pervasive sense of pessimism about the efficacy of institutions. A performance audit would show that the instrumentalities at the disposal of our legislatures have either been blunted or become dysfunctional. The single most important issue of concern is the decreasing credibility of our legislatures as effective institutions capable of delivering public good and contributing to effective formulation of laws and public policy.

In regard to the executive, the balance between its political and professional components has been disturbed; this is evident in the functioning of the civil service and particularly of the police. Thus ‘the myth of authority’, on which the power of the State depends, has been dented and has resulted in what has been called ‘executive under reach’.

Even the judiciary has not been immune to allegations of corruption and concern has been expressed about the absence of a mechanism of accountability other than the process of impeachment.

A less scrutinised aspect of the functioning has been the role of political parties in the promotion or otherwise of democratic and federal functioning. Did Ambedkar have a premonition on this count too?

More disturbing questions have also been raised. Is representative government the same as responsive government? Do practices of governance satisfy the requirements of rule of law?

Three years back, a senior law officer of the Government addressed this question candidly and concluded that the Rule of Law in India is under serious threat, that there is widespread popular disillusionment, that there are cancerous developments eating into the fabric of each of the state institution and each is destroying itself from within, and that if these trends are not arrested, they are bound to be destructive of the Indian State in the long run.

In a similar vein but commenting on the wider picture, civil society groups in the country and abroad have observed that ‘the rule of law in India is in a downward spiral’ and that the primary responsibility for it lies with the ‘delayed justice dispensation system’.

Surveying the functioning of our democracy, political scientist Pratab Bhanu Mehta notes that “the lines between legality and illegality, order and disorder, state and criminality have come to be increasingly porous”.

Mehta sums up with a line from the poet Yeats: ‘The best lack all conviction, while the worst are full of passionate intensity’.

Ladies and gentlemen
Dismal though the picture may be, it cannot be allowed to dampen the will. In the final analysis, therefore, there is no option but to go back to Gandhiji’s dictum that politics without principle is a sin.

Only this can be the basis of good politics; only good citizens can bring it about; only this will retain and sustain the spirit of the Constitution and lead to the fulfilment of its objectives.

I thank the Servants of the People Society for having invited me today. I wish them success in their work.

Let me end where I began – on Krishan Kantji. A line from an Urdu couplet provides an appropriate epitaph:

Kya khoob aadmi tha khuda maghfirat kare.