* Editorial 1

The government’s Kashmir move exposes the contingent nature of India’s asymmetric constitutional provisions

Getty Images/iStockphotobharat soni/Getty Images/iStockphoto

The abrogation of Article 370 has exposed ambiguities that have long been evident in India’s federal system. Asymmetric agreements have been negotiated in settlement of a number of regional conflicts in India. Kashmir’s autonomous status was the oldest and — in original conception — the most far-reaching of these provisions. But in practice, there has been a contingency to autonomy provisions, leaving them open to revision by popular majorities at the all-India level.

An altered trajectory

The regionalisation of India’s party system between 1989-2014 contributed to the appearance that deeper federalism and growing regional autonomy vis-à-vis the Central government was an almost inexorable process. However, the rise of the Bharatiya Janata Party (BJP) to national political dominance has altered that trajectory. By abrogating Article 370 and bifurcating Jammu and Kashmir State to create two Union Territories, the BJP has demonstrated the possibility of using the inherent flexibility in the federal order to centralise power and reshape the size, powers and stature of a constituent unit of the Indian Union — the only unit with a Muslim majority population.

The constitutionality of the abrogation of Article 370 will be carefully picked over in the months and years to come. But the government’s ability to table and pass legislation with such important consequences for the fabric of federalism — while the elected assembly of Jammu and Kashmir is in abeyance — exposes the fragile set of compromises on which India’s asymmetric federal system rests.

Asymmetric federalism involves the granting of differential rights to certain federal subunits, often in recognition of their distinctive ethnic identity. In the case of Jammu and Kashmir, the negotiation of Article 370 was a transitional and contingent constitutional arrangement agreed in the midst of a continuing conflict while the Indian Constitution was being finalised. Over time, this ‘transitional’ clause had become a semi-permanent institutional compromise, although this was ever an uneasy compromise. Kashmir’s autonomy arrangements had been eroded under successive governments as tensions grew between the desire of Prime Ministers from Jawaharlal Nehru onwards to integrate the State more closely into the Indian Union and the desire of many Kashmiris to preserve a special status for their State. Since 1954, as many as 94 of 97 entries in the Union List and two thirds of constitutional articles have been extended to the State. This process has happened with the approval of the Supreme Court.

Subsequent asymmetric agreements were reached with the Nagas and the Mizos, which are enshrined in Article 371 in the Constitution. When the small State of Sikkim joined the Indian Union in the early 1970s, Article 371F was added to the Constitution. Article 371F allowed for laws that were in place before Sikkim’s accession to remain in place unless amended or repealed by the legislature. Article 371 also contains measures that were intended to promote intra-State equity in Andhra Pradesh, Telangana, Maharashtra, Gujarat and Karnataka.

Contesting asymmetry

Asymmetric constitutional provisions are a common feature of federalism in diverse societies. Many have argued that India sets an international example for how asymmetric features can help dampen secessionist conflicts by recognising multiple modes of belonging within the Union. Rather than encouraging secessionism, proponents of asymmetric arrangements argue that it is the denial of autonomy that can provide ground for secessionist claims to grow.

However, asymmetric arrangements are often contested by majority national communities and by other regions without special arrangements. The annulment of Article 370 has long been a cause célèbre for Hindu nationalism, but it was striking that it also received wide support from many regional parties in Parliament.

The rationale set out by the BJP this week drew on all the textbook critiques of asymmetric arrangements to attract the support of many regional parties to pass the legislation in the Rajya Sabha. These include the argument that asymmetric provisions are discriminatory, for instance, by placing prescriptions on who can own property in particular regions, or because they privilege certain kinds of ‘special’ identities over others. A Telugu Desam Party MP, from India’s first linguistic State Andhra Pradesh, welcomed the fact that India would now be ‘one nation with one flag and one constitution.’ Alternatively, asymmetric status is presented as contributing to secessionist claims, hence the argument that Article 370 is the ‘root cause of terrorism’. Autonomy arrangements are also presented as anti-egalitarian because they prevent the extension of rights in force elsewhere in a country. This last argument underscores the significance of the simultaneous emphasis on extending reservations for Scheduled Castes and Scheduled Tribes in the new Union Territories alongside the abrogation of Article 370. As the Home Minister, Amit Shah, said in the Lok Sabha: “Those who support Article 370 are anti-Dalit, anti-tribal, anti-women.”

A deliberate flexibility

By design, India’s federal institutions place relatively weak checks on the power of a government with a parliamentary majority. As the political scientist, Alfred Stepan, identified, federal systems can be more or less ‘demos constraining’. In those at the more ‘demos constraining’ end of the spectrum, federalism serves to undermine the consolidation of power by national majorities. For instance, the American theorist, William Riker, saw American federalism as a counter-weight to national populism since ‘the populist ideal requires that rulers move swiftly and surely to embody in law the popular decision on an electoral platform’. By contrast, other federal systems, such as India’s, are more ‘demos-enabling’. This means that the design of federalism places fewer checks on the power of national majorities. For instance, the composition of the Rajya Sabha mirrors the composition of the Lok Sabha, rather than providing equal representation to States regardless of size, and the Rajya Sabha has weaker powers than the Lower House. Fewer powers are constitutionally allocated to federal subunits exclusively compared to more demos-constraining federations.

Placing this kind of flexibility in the hands of the Central government was deliberate and designed to enable decisive Central action to protect national integrity in the aftermath of Partition. In the Constituent Assembly, B.R. Ambedkar highlighted the difference between the ‘tight mould’ of other federal systems and the flexibility hard-wired into India’s which would enable it to be both ‘unitary as well as federal’ according to the requirements of time and circumstances.

This constitutional permissiveness has been used to do things that have deepened federalism in the past under both Congress and BJP-led governments, such as the creation of new States in response to regional demands from the linguistic reorganisation of States in the 1950s onwards. By granting the Central government the power to create new States or alter State boundaries under Article 3, and not giving State governments a veto over bifurcation, the Constitution enabled the Central government to accommodate linguistic and ethnic diversities in a way that would have been much harder in a more rigid federal system. It also enabled the Central government to adopt asymmetrical measures in the first place without facing a backlash from other regions that might have resented the ‘special’ treatment of minority regions. Until the 2000s, most of these changes were done based on a slow process of consensus building within the regions concerned.

The unknown

By abrogating Article 370, bifurcating Jammu and Kashmir and downgrading the status of the successor units to Union Territories, the government has used the flexibility of the federal provisions of the Constitution to other ends. This is not the first time that a Central government has used its powers to bifurcate a State in the absence of local consensus. This was also seen with the creation of Telangana in 2014. As in the case of Telangana, the creation of the Union Territory of Ladakh does respond to a long-run demand in this region with a substantial Buddhist population. However, the decision to transform the remainder of J&K State into a Union Territory, at the same time as annulling Article 370, is a departure with profound and as yet unknown consequences in Kashmir, and wider implications for Indian federalism.

Louise Tillin is a Reader in Politics at King’s College, London. She is the author of ‘Indian Federalism’ (2019)

Beijing should realise that political reform rather than economic lures is what resonates in Hong Kong

Thomas Abraham

Getty ImagesChris McGrath

As Hong Kong’s turbulent summer of protests continues unabated, China’s patience with its restive southern city could be wearing thin, and it has hinted at using the People’s Liberation Army (PLA) to quell the protests. That would be disastrous for both Hong Kong and China.

Angry and frustrated young Hong Kongers have confronted the city’s government with a series of demands, including the withdrawal of a bill that would allow people to be extradited from Hong Kong to China. The government has said it will shelve the bill temporarily, but will not scrap plans to reintroduce it at a later stage.

The extradition bill is only the latest issue that has brought people out on the streets. In 2014, young people occupied the streets of central Hong Kong for several weeks demanding among other things universal suffrage rather than the current electoral college to chose the head of the Hong Kong government. Earlier, students had protested attempts to introduce what was described as patriotic education into the school curriculum.

The Chinese government is increasingly a target of the demonstrators, who recently attacked Beijing’s liaison office in Hong Kong and defaced the Chinese national emblem. In China’s view, this was a grave provocation, and appears to have triggered a threat to bring in the PLA to end the protests.

The Tiananmen shadow

In a rare public statement, the head of the PLA garrison in Hong Kong, Chen Daoxiang, warned that “violence should not be tolerated” and that the PLA “was determined to protect national sovereignty, stability and prosperity of Hong Kong.” To drive home the message the PLA released a video of anti-riot drills showing heavily armed soldiers supported by helicopters quelling demonstrators.

If PLA troops and tanks rumble through Hong Kong’s streets it would effectively end any pretence of Hong Kong’s autonomy within China. It would spell the end of Hong Kong as a city open to the world, where freedom of expression and the rule of law prevailed.

For China, it would be a rerun of June 1989, when troops and tanks were used in Tiananmen Square in Beijing to crush students protesting for reforms. That action taken at the urging of Deng Xiaoping quelled the unrest, but threw China into a decade of international isolation at a time when it was desperately seeking to modernise its economy and emerge as a global power. The G7 refused to deal with China, World Bank loans were frozen, and many western countries imposed trade sanctions.

Potential global fallout

Any violence in Hong Kong with the Chinese military will produce a strong reaction from China’s main trade partners. The United States is already engaged in a trade war with China, and the Trump administration has slapped additional import duties on Chinese goods to force it to end what it describes as predatory trade practices. Military action in Hong Kong will only strengthen support in the U.S. for tougher trade and economic sanctions. Similarly the European Union can be expected to react strongly to any action by the PLA in Hong Kong.

China’s leader, Xi Jinping, is extremely conscious of the legacy he wants to create as the most consequential leader modern China has had, alongside Mao and Deng Xiaoping. Sending tanks into Hong Kong is not going to help him achieve this. But neither can he allow his authority to be defied in Hong Kong in a way that would not be allowed anywhere else in China.

China does not understand what fuels the anger in Hong Kong. It has fallen back on the standard argument that governments confronted with popular protests tend to use: foreign forces are behind the unrest. Yang Jiechi, a PolitBuro member of the Communist Party of China, has said that the U.S. and other unnamed countries had been stirring up trouble in order to undermine Hong Kong.

But there is no evidence to show that these protests are anything but home grown, and the continuing tragedy is that the Chinese leadership is either unable or unwilling to understand the roots of the anger in Hong Kong.

A disconnect

The hard fact China has to face is that 22 years after the British withdrew and Hong Kong returned to Chinese sovereignty, the former colony is drifting further and further away from China, rather than getting closer to the motherland.

The Hong Kongers who are at the forefront of the protests were all born shortly before or after Hong Kong returned to Chinese sovereignty. They have only known Hong Kong as a part of China. But their identity, outlook and worldview is not mainland Chinese, but distinctively Hong Kong. They speak Cantonese, not Mandarin. They look to Japan, Korea, Taiwan and the western world for their culture, not the mainland. When they travel on holiday, it is not to China but to other parts of the world. When they go abroad to study, it is not to China, but to the west. Like their parents who grew up under British rule, they have no desire to be integrated with the rest of China; they are suspicious of Chinese intentions.

China’s leaders had thought that greater economic opportunities in a booming China would help bind Hong Kong to the motherland. The booming cities of the Pearl River delta have become closely economically integrated with Hong Kong, offering jobs in cutting edge industries to young Hong Kongers.

But these economic lures have not enticed them. Their desire is to to preserve what they see as the Hong Kong way of life. And for that to happen, they demand their own elected government, not leaders appointed by the Chinese government. This is more than China is willing to concede, and therein lies the seed for future tragedy in Hong Kong.

Thomas Abraham is a former Editor of The South China Morning Post in Hong Kong

Dissent does not have to invite measures aimed at throttling information flow

Jammu and Kashmir remains entirely cut off, ironically, as part of the efforts at effecting its “complete integration” with the rest of the country. Rightly or wrongly, the BJP government at the Centre in its wisdom thought that annulling the special status accorded to J&K in the Constitution and demoting and dividing it into two Union Territories were essential steps towards national integration. Information flow to and from J&K has been restricted to almost nil, and media platforms reported on the momentous changes abruptly announced by the Centre without any independent account of the situation on the ground. That the world’s largest democracy could clampdown on information to the public in such a cavalier manner may appear incomprehensible under ordinary circumstances. But then, muzzling voices from J&K was only a corollary to a far more consequential directing of discourse. People in J&K even missed the Prime Minister’s tweet on how the new scheme of things would be helpful for them, as they were, and continue to be, snapped off the Internet. Reporting from conflict zones is not new to Indian media. Journalists have covered riots, insurgencies and wars for decades in the country, and governments have allowed them to do so. By and large, state agencies have even enabled reporting from conflict zones and sites of natural disasters with curfew passes and special communication facilities, though there have been exceptions. Accurate information is always the best counter to misinformation and treacherous rumours.

Information coming out of the State is sparse, costly and hard to gather. The announcement on the withdrawal of the special status of J&K was preceded by a flurry of reporting sourced to government officials that terror threats were the reason for additional troop deployment. The Amarnath yatra was discontinued and the Valley was emptied of tourists owing to these threats. Quite likely, irrespective of the nature of the threat alerts, these measures were linked to the Centre’s decision on removal of the special status. Even before the clampdown on communication facilities, the government had been tight-fisted with information. The same attitude was evident subsequent to other critical decisions it made in recent years: official communication with the public has been strictly a one-way process, through press releases, radio monologues, and social media posts. Parliament, which ended a highly productive session in terms of business transacted, has been reduced to endorsing executive decisions with little meaningful discussions. While these are concerns that the government must address at the earliest, it must start with the immediate removal of all restrictions on movement of people and communication in J&K. Only security concerns under exceptional circumstances, and not aversion to democratic dissent in the normal course, can justify choking the information flow.

The government must now unleash measures to boost growth

Faced with slowing GDP growth and encouraged by benign inflationary trends, the Reserve Bank of India (RBI) has delivered a Goldilocks cut of 35 basis points in the benchmark repo rate. Though a rate cut was a foregone conclusion ahead of the monetary policy announcement, the expectation was of either a 25 or 50 basis points one. Given the extent of the slowdown in the economy, the Monetary Policy Committee (MPC) deemed the former as too low but taking into account factors such as the turbulence in the global financial markets and the rupee’s fall in the last few days, the latter was seen as too high. In the event, the MPC settled on a median and unconventional 35 basis point cut, which keeps the powder dry for further cuts this financial year. With this, the RBI has cut rates in four consecutive policy announcements beginning February this year, aggregating to a total of 110 basis points. But the transmission by banks to lenders has not been even a third of this. The central bank says that banks have passed on just 29 basis points which is poor indeed. One factor inhibiting transmission was the tight liquidity conditions until June when the RBI flooded the market — in fact, the last two months the central bank has had to absorb excess liquidity floating around. There is, therefore, reason to hope that transmission from hereon would be quicker.

The repo rate at 5.40% is now at a nine-year low and is headed lower in the next few months and could well settle at 5% or very close to that by the time this rate cutting cycle plays out. Supporting this theory is the fact that inflation is projected to be benign for the next one year. Growth, on the other hand, is expected to be weak and the MPC has revised downwards the projected GDP growth rate for this fiscal to 6.9% from 7% earlier, with downside risks. Even this appears optimistic given the current impulses in the economy and it is very likely that GDP growth this fiscal will be closer to 6.5%. With the latest cut, the RBI has signified that it is willing to do the heavy lifting. But this alone will not suffice as cost of capital is just one aspect that determines investment. The government has to play its part too in boosting growth. Arguably, the space for fiscal concessions is limited given the overall revenue scenario, but the government can certainly push for further reforms to incentivise investment without impacting its fiscal arithmetic. The slowdown now is part cyclical — which can be addressed by a rate cut — and part structural, for which reforms are an absolute necessity. Therefore, unless the government responds with its own measures, the RBI’s efforts to support growth may go in vain.

Inspiring Minister

Former External Affairs Minister Sushma Swaraj was a very affable personality and a popular face of the Bharatiya Janata Party (Inside pages, “A BJP stalwart with Socialist roots”, August 7). In her stint as foreign Minister, her untiring efforts were what helped a number of Indians stranded abroad being brought back safely. An excellent orator, her speeches had a great impact.

V. HariHaran,

Chennai

Ms. Swaraj will be remembered as a model of how an External Affairs Minister should function. She won the hearts of countless overseas Indians, particularly the NRI blue-collar worker in distress. She was an embodiment of compassion and a decent politician. At a time when the ruling dispensation is intent on implementing its agenda by hook or by crook, it is unfortunate that the country has lost a senior leader who was also a balanced thinker.

Tharcius S. Fernando,

Chennai

There is no doubt that Ms. Swaraj projected a very high image of India at the global level. There was a touch of humanism in all her functions. She was a people’s minister all through.

C.P. Chandra Das,

Collierville, Tennessee, U.S.

Ms. Swaraj was an able administrator, stateswoman and an adept parliamentarian. Kerala will remember her efforts in 2014, in rescuing 46 nurses who were held captive by the Islamic State. Without her intervention the operation would not have been possible. Governments and ministers may change but Ms. Swaraj will live on in the hearts of every Indian.

Georgil K. Jeemon,

Pallikara, Ernakulam, Kerala

Over and above her administrative acumen, Ms. Swaraj will be fondly remembered for her humaneness during her stint as Minister. She was not only instrumental in arranging for the homecoming of several stranded Indians but also displayed a mother’s touch by facilitating medical visas for ailing Pakistanis.

S. Vaithianathan,

Madurai

Kashmir road map

No one was in doubt this time around about the Prime Minister walking the talk on scrapping Article 370. But what came as a bolt from the blue was the decision to unilaterally downgrade and split the State. This is anathema to federalism. Though there is an assurance of full statehood being restored, expecting normalcy to return any time soon would be too illusory given the gravity of such radical decisions.

S.K. Choudhury,

Bengaluru

Mrs. YGP

The passing of educationist, and patron of the arts, Mrs. Y.G. Parthasarathy is a shock (August 7). “Big Miss” was a class apart. Her role stretched from taking English prose, Shakespeare, moral science class, morning and Friday assembly and overseeing school administration. Her favourite quote was: “More things are wrought by prayer than [what] the world dreams of”.

S.S. Ramesh,

Chennai

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