Written by Nikita Kujur
During the American Civil War, neither the Southern States, nor the Union was able to destroy the other, thus, concretizing an essential feature of federalism, i.e., the Union or the States cannot abolish the other. This can be taken as finality of the borders of the federating units within the federation giving birth to the doctrine of territorial integrity. A feature, which goes a hand-in-hand with federalism as it allows unity without suppression.
The fact that state borders in the US and Australia have remained unchanged for more than hundred years is an example of territorial integrity, but India provides a varying instance. The nearly octogenarian country has been busy in continuously drawing and redrawing its border, thus, diluting the essence of its territorial integrity. The concept of federalism has also undergone an evolutionary phase from confederation to modern-day nation-states ticking the prerequisites for a federal state. Attempts are often made to fit a federal state into a straitjacket formula, but the very concept of federalism has to be tailor-made as per social, economic and political conditions of that particular nation-state. This places Indian federalism as well as its treatment of territorial integrity at variance with other federal states.
This write-up is a way to reflect upon how the ability of the Centre to abolish the units can be seen as an attempt towards giving recognition to heterogeneous elements of India, thereby giving way to the true essence of federalism.
FEDERALISM AND TERRITORIAL INTEGRITY
AN INTRODUCTION
The power that giveth can taketh away.
These words give an impression of greater centralization, but it also reflects an ever-evolving dynamics of power sharing in India. Such developments are further echoed in the federal structure and territorial integrity of India. The former can be understood as a two level governance mechanism consisting of general and regional government, both working independently and in cooperation, and catering to the same populace. Article IV of the Helsinki Final Act 1975, defines territorial integrity in relation to international law, “Nation-states should not attempt… nor impose a border change through force.” This aspect becomes relevant in the context of drawing the internal boundaries in a nation-state. Thus, federalism and territorial integrity together can be understood as-the former allowing autonomy of the states and the other enabling the continuity of that autonomy.
In India’s case, federalism was a political solution for its political problem of accommodating the diverse needs of its diverse populace. Supplementarily, to further assimilate this heterogeneity, India adopted a loose interpretation of territorial integrity. The implication of such interpretation can be seen starting from the State Recognition Act, 1956 and the latest step in this direction being the Jammu and Kashmir Reorganization Act, 2019. This gives an impression that India has not reached the panacea when it comes to the drawing of the territorial borders of federating units.
PART I: THE STATE REORGANIZATION ACT, 1956
The State Reorganization Act, 1956 is a reflection of the conundrum between decentralization and dilution of Doctrine of Territorial Integrity. The Constitution allows for redrawing of territorial boundaries by a simple majority in Parliament. This shows that the framers did not envisaged perpetuity when it comes to the internal boundaries, rather they saw the redrawing to accommodate and assimilate the changing needs. The Supreme Court in the case of In re Berubari Union stated: “The Constitution contemplated changes of the territorial limits of the constituent States and there was no guarantee about their territorial integrity.” This was in sharp contrast to what is seen in the US, where the protection of ‘State’s right’ is important, and Doctrine of territorial integrity finds a place in the Constitution. The position of federalism and territorial integrity in India and the US can be credited to how these federations came into existence. As a result, the Indian federalism is seen as an “indestructible Union of destructible units.”
Independent India inherited the political borders drawn by the British which continued till 1956, resulting in the continuation of multicultural and multilingual states in India. Drawing of state borders along cultural and linguistic lines was seen as a solution to the continuously emerging trends and challenges in Indian politics, and also as a way of reflecting the federal character of the nation-state. Besides, the existing borders did not hold much rationale when it came to the existing conditions of India. The State Reorganization Act, 1956, from the perspective of classical federal states, such as the US would appear as abolishing the existing units, but taking into consideration the Indian context, such reorganization gave way to linguistic administrative units. Thereby, aiding in imbibing the mother tongue in administrative and judicial capacity, and thus, giving way to grass-root governance. In addition, such dilution of territorial integrity was aimed at ensuring that the marginalized sections of the society can become active participants in the democratic processes of the country. This reorganization destroyed some existing states like earlier Madras Presidency or the Bombay Presidency and gave in its place states like Tamil Nadu, Andhra Pradesh, Maharashtra and Gujarat. One cannot imagine a large state like Texas getting split up for administrative efficiency. The case of State Reorganization back in the 1950s was a demand which arose from the bottom rather than something which was imposed on the states from the top. Thus, one can say that by having our own interpretation of territorial integrity we are moving towards a federalism which gives greater recognition to the state’s desires and autonomy. According to Mann, ‘Such reorganization has strengthened the federal structure of Indian nation-state and had also aided in the nation building.’
The dilution of the concept of territorial integrity can also be seen in the light of ethno-federalism, wherein the internal borders are drawn along ethnic lines, in order to create self-governing units. Such creations are often seen as a way of accepting regional aspiration without destabilizing the larger socio-politico structure. It is said that the success rate of such creation is more than one is ready to accept, especially when it comes to preserving the Union.
PART II: THE JAMMU & KASHMIR REORGANIZATION ACT, 2019
The Jammu & Kashmir Reorganization Act, 2019 has further diluted our conception of territorial integrity in the context of federal state. This was the first time that redrawing of borders transformed a State into Union Territories. Besides, the Special status of the erstwhile state of Jammu & Kashmir under the Constitution gave a different perspective of how we see federalism and territorial integrity. The decision of the Supreme Court in the case of In re: Article 370 gives a nuanced perception of Indian federalism and territorial integrity. Here the Court held that: ‘the Centre has the power to transform a state into a Union Territory, and Article 3 of the Constitution allows the Centre to do so.’ Besides, Jammu & Kashmir was treated as an integral part of India under Article 1 of the Constitution, and the Article applies in its entirety to Jammu & Kashmir. This reasoning of the Court gives an implication that India does not abide with the doctrine of territorial integrity as can be seen in other federal states such as the US. The redrawing of the border of Jammu & Kashmir should be seen as a remedy to tackle the security issue of the region. For it should be remembered that federalism of a nation-state is designed to suit its various political, social and economic needs. The security issue of Jammu & Kashmir justifies the dilution of territorial integrity.
On the flipside it can also be argued that such redrawing of internal borders are often portrayed as a panacea of all the problems with which the region was affected, but recent terrorist activities in Jammu & Kashmir proves otherwise. This redrawing of the border and conversion of state varies from previous reorganization because rather than the demand coming from the masses, this redrawing appears to be imposed by the Centre on federating units. Additionally, sometimes such redrawing of state borders are politically motivated, which nullifies the Indian stance with regard to territorial integrity.
CONCLUSION
It is said that federalism is not just a structure but it is a process in itself. If federalism can be seen as a process, then it gives liberty to the nation-state how it wants to use ingredients like territorial integrity in its making. The fact that India is still drawing and redrawing its borders even after 78 years is a reflection of dilution of territorial integrity in the making of Indian federalism. This dilution shows that our federal structure is not mere emulation of successful federal structure, but it is a customization of our own making taking into consideration not only our diversity but the nation-state itself came into existence.