Cooperative Federalism in South Asia and Europe: Contemporary Issues and Trends [1 ed.] 9781032451671, 9781032609393, 9781003461197

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COOPERATIVE FEDERALISM IN SOUTH ASIA AND EUROPE

This book explores the challenges, opportunities, and trends impacting the working of federations in South Asia and Europe. It deliberates on the changing socio-­economic realities, challenges facing the existing structures of governance, degrees of consociationalism, and the growing aspirations of people in South Asia and Europe. Through case studies from Greece, Germany, Austria, Switzerland, Spain, France, Sri Lanka, Pakistan, Nepal, Maldives, Bhutan, and India, the volume focuses on critical issues relating to cooperative federalism – its complexities, institutional dilemmas, and trends in South Asia and Europe. It discusses a variety of themes relevant to Cooperative Federalism including federal-­state relations, cooperative governance, constitution, multiculturalism, fiscal relations, democratization, devolution of powers, consociationalism, and global citizenship-­in South Asia and Europe. The book further emphasizes the need to strike a balance between the federal government and the constituent units in these two regions. Topical and lucid, this book will be of interest to teachers, scholars, and researchers of political science, comparative government and politics, federalism, South Asian politics, European politics, governance studies, and political studies. M.J. Vinod is Professor in the Department of International Studies, Political Science and History in CHRIST (deemed-to-be) University, Bangalore, India. Stefy V. Joseph is Assistant Professor in the Department of International Studies, Political Science and History at CHRIST (Deemed to be University), Bangalore, India.

Joseph Chacko Chennatuserry is the Vice Chancellor of CHRIST (Deemed to be University) Bangalore, India, and Professor of History in the Department of International Studies, Political Science, and History. Dimitris N. Chryssochoou is Professor of Theory and Institutions of European Integration in the Department of Political Science and Public Administration of the National and Kapodistrian University of Athens, Greece.

COOPERATIVE FEDERALISM IN SOUTH ASIA AND EUROPE Contemporary Issues and Trends

Edited by M.J. Vinod, Stefy V. Joseph, Joseph Chacko Chennatuserry and Dimitris N. Chryssochoou

Designed cover image: Image Courtesy of Christ University First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 selection and editorial matter, M.J. Vinod, Stefy V Joseph, Joseph Chacko Chennatuserry and Dimitris N. Chryssochoou; individual chapters, the contributors The right of M.J. Vinod, Stefy V Joseph, Joseph Chacko Chennatuserry and Dimitris N. Chryssochoou to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. The views and opinions expressed in this book are those of author and do not necessarily reflect the views and opinions of Routledge. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-032-45167-1 (hbk) ISBN: 978-1-032-60939-3 (pbk) ISBN: 978-1-003-46119-7 (ebk) DOI: 10.4324/9781003461197 Typeset in Sabon by SPi Technologies India Pvt Ltd (Straive)

CONTENTS

Editors viii Notes on Contributors x Acknowledgements xvi Introduction 1 M.J. Vinod, Stefy V. Joseph, Joseph Chacko Chennatuserry and Dimitris N. Chryssochoou PART I

Cooperative Federalism: Conceptual Issues

11

1 European ‘Syspondia’: Theorizing a Late-Modern Political Aggregate Dimitris N. Chryssochoou

13

2 Cooperative Federalism in the United States: National, State and Local Dynamics John Kincaid

28

3 Federalism and Democracy: The Need for a Differentiated Approach Patricia Popelier

46

vi  Contents

PART II

Cooperative Federalism in India

59

4 Fortunes of Federating Units in India Krishna K. Tummala

61

5 Civil Society and Cooperative Federalism in India: The Need for a Conceptual Enquiry G. Gopa Kumar

82

6 Emerging Trends in Indian Federalism: Collaboration, Competition and Coordination Sandeep Shastri and Katyayani Singh

104

7 The Federal Dynamics of Indian Foreign Policy: Issues, Concerns and Trends M.J. Vinod, Lakshmi Karlekar and Joseph Chacko Chennatuserry

PART III

120

Cooperative Federalism in Europe

143

8 COVID-19 and Its Impact on Cooperative Federalism in Austria Peter Bußjäger and Mathias Eller

145

9 Political Economy of Cooperative Federalism in Germany: Issues and Implementation Roland Sturm

157

10 Federalism and Power-Sharing as Modes of Diversity Management in Europe Soeren Keil

171

Contents  vii

PART IV

Cooperative Federalism in South Asia

189

11 Executive Absolutism and Decentralised Governance: A Study of the Sri Lankan Provincial Council System Upul Abeyrathne and Sumudu Walakuluge

191

12 Cooperative Federalism in Nepal: Practice and Prospects Thaneshwar Bhusal 13 Cooperative Federalism in a Multinational Country: Examining the Case of Pakistan Stefy V. Joseph and Jairam R. Prabhu

211

228

Index 246

EDITORS

M.J. Vinod is Professor in the Department of International Studies, Political Science, and History in CHRIST (deemed-­to-­be) University, Bangalore, India. He was a former Dean and Syndicate member, Bangalore University. He was awarded the Senior Fulbright Fellowship where he taught as a Scholar-­ in-­ residence at Morgan State University, Baltimore, from August 2015 to May 2016. Some of the other fellowships conferred include the Salzburg Fellowship in Austria; Ford Foundation Fellow at the University of Maryland, College Park; Swiss Foreign Ministry Fellow at the Graduate School of International Studies, Geneva; Visiting Fellow at the Henry L. Stimson Center, Washington DC; and an International Visitor Fellow of the US State Department. Some of his recent books include Empowering Marginalised Communities in India: The Impact of Higher Education (co-­edited, 2022); Contemporary Political Theory (2016); and Security Challenges in the Asia-­Pacific Region: The Taiwan Factor (2010). Stefy V. Joseph is Assistant Professor at the Department of International Studies, Political Science, and History at CHRIST (Deemed to be University), Bangalore, India. She is a recipient of the UNESCO-­ Madanjeet Singh Scholarship by the South Asia Foundation. Her areas of research interest include Federalism Studies, Indian Foreign Policy, Maritime Studies, and South Asia. Some of her publications include “Knowledge Society” and the “Era of Post-­Truth: Challenges to Democracy”, Journal of Dharma (44:1 2019); Revisiting Gandhi’s Idea of Trusteeship in the Context of Globalization and Inequality, India logs, Spanish Association of India Studies, 2021; a co-­ authored chapter: A Contest of Charm offensive in the Himalayas: India and China’s soft power ambitions in Nepal in the book, Nepal’s Foreign Policy & Emerging Global Trends edited by Shrestha, Jaiswal, and Poudel.

Editors  ix

Joseph Chacko Chennatuserry is Vice-­Chancellor of CHRIST (Deemed to be University) Bangalore, India, and Professor of History at the Department of International Studies, Political Science, and History. He has his research interest in Maritime History, Organizational Culture and Work Values in Educational Institutions and Indo-­ Korea Relations, etc. Of late, he was involved in the restoration of St Kuriakose Elias Chavara Archives and Research Centre, Mannanam, Kottayam, State of Kerala, India, and Archives in the library at Dharmaram College, Bangalore. Some of his publications are “Hong, Paul, Joseph C C., Joseph Varghese Kureethara (2018). “Organization Culture and Work Values of Global Firms: Merging Eastern and Western Perspectives”, IBA Journal of Management and Leadership. Vol 10, No. 1., pp. 82–92: Chinese Maritime Relations with Malabar Coast, 1200-­1500 AD: A Quest for Naval Dominance, Maritime Affairs (Winter Issue 2019); Co-­ authored article – The Merging Odyssey of Trade, Investment and Partnership: A Linkage Model of India and Korea Interactions (Accepted for publication), International Journal of Business Excellence, 2019. His co-­ authored books are Fostering Higher Education: Half a Century in Service, Centre for Publications, CHRIST (Deemed to be University): Bangalore, 2019; Thomas C Mathew: A Man of All Seasons, Centre for Publications, CHRIST (Deemed to be University): Bangalore, 2019; Revisiting a Treasure Trove, Bangalore: Centre for Publications, CHRIST (Deemed to Be University) 2018, ISBN-­978-­81-­933887-­3-­0; History of Dharmaram College: A Living Legacy of Integral Formation 1957-­ 2017, Bangalore: Dharmaram Publications, 2017, and St. Thomas and India: Recent Research, Fortress Press, USA. He has published widely nationally and internationally. Dimitris N. Chryssochoou is Professor of Theory and Institutions of European Integration in the Department of Political Science and Public Administration of the National and Kapodistrian University of Athens, Greece. He has been professor at Panteion University, associate professor at the University of Crete, reader, honorary research fellow, and honorary senior research fellow at the University of Exeter and has held visiting posts at the Universities of Cambridge, Oxford, LSE, Columbia, Virginia Tech, CHRIST (Deemed to be University), Geneva, Oslo, Jyväskylä, Catania, Malta, NeapolisPafou, Nicosia, European University Cyprus, Crete, the Aegean, and the Peloponnese, at the Centre for European Constitutional Law in Athens, the Hellenic Centre for European Studies, and the Norwegian Institute at Athens. On 30 January 2022, the Feast Day of the Three Hierarchs, he was ordained Archon Referendarios of the Holy and Great Church of Christ by His All-­Holiness the Ecumenical Patriarch Bartholomew at the Holy Patriarchate Church of Saint George at the Phanar.

CONTRIBUTORS

Upul Abeyrathne is working as the Professor of Political Science, University of Peradeniya, Peradeniya, Sri Lanka. He has completed his PhD in Political Science, Department of Political Science, Bangalore University, Bangalore (2010). He has completed his MPhil in Political Science, Department of Political Science, University of Peradeniya, Sri Lanka (2005). He has completed his BA in Political Science, Department of Political Science, University of Peradeniya (1992–1996). He was also appointed as senior lecturer (Grade I), Department of Public Policy, University of Ruhuna, Matara, Sri Lanka, from 1 June 2011 to 31 October 2016, senior lecturer (Grade II), Department of Economics, University of Ruhuna, Matara, Sri Lanka, from 1 June 2005 to 31 May 2011, lecturer, Department of Economics, University of Ruhuna, Matara, Sri Lanka, from 1 January 1999 to 31 May 2005, Assistant Lecturer, Department of Political Science, University of Peradeniya, Peradeniya, Sri Lanka from 15 October 1996 to 31 of January 1999. His most recent book is titled: Politics of Poverty Alleviation in Sri Lanka: Public Policy and Beneficiary Organizations published in 2011. Thaneshwar Bhusal is an Honorary Professional Associate at the Institute for Governance and Policy Analysis, University of Canberra, Australia. He completed his PhD in 2018 in the field of political science and policy studies, focusing on Nepal’s participatory local governance. A number of journal articles and book chapters have been published by Dr Bhusal in recent times, most of which analyse Nepal’s federalism, local governance, and citizen participation. Dr Bhusal has been awarded by American Society for Public Administration with a Founder’s Fellowship in 2017, an Australia Awards Scholarship in 2012, a fellowship by Germany’s InWEnt in 2010 for his

Contributors  xi

outstanding academic performance in the studies of political science and policy studies. His most recent work: “Federalism and local governance: Exploring multilingualism in local decision-­making in Nepal”, Regional & Federal studies, 2021; “Ordinary people’s participation in local development planning in Nepal.” Development in Practice, 2021. He has published widely nationally and internationally. Peter Bußjäger habilitated as a University Lecturer in constitutional law, administrative law, and administrative theory at the University of Innsbruck in March 2000 after numerous activities in the Vorarlberg provincial administration. Since 2001 he has been Director of the Institute for Federalism in Innsbruck. In 2009, he was appointed as a member of the State Court of the Principality of Liechtenstein. In October 2014, Dr Bußjäger was appointed University Professor of Public Law at the Institute of Public Law and Political and Administrative Science at the University of Innsbruck. He is a member of numerous working groups – both nationally and internationally – and has served since 2018 as a Member of the Group of Independent Experts on the European Charter on Local Self-­Government (representative of Austria) and representative of the Principality of Liechtenstein Member of the Venice Commission. Dr Bußjäger is the author of numerous legal publications and regional historical writings. In addition, he regularly comments on constitutional and administrative policy issues in the Austrian print media. He has published widely nationally and internationally. Mathias Eller studied Law and Business Law at the University of Innsbruck. He has been University Assistant at the Department of Public Law, State and Administrative Theory between May 2016 and February 2020 at the University of Innsbruck. He received his doctorate in law in March 2019 from the University of Innsbruck. During his time as a University Assistant, he completed an internship at the Office of the Tyrolean Provincial Government (Department: Constitutional Service). After a Court internship in the district of the Higher Regional Court Innsbruck (District Court Innsbruck, Regional Court Innsbruck), he has been Head Assistant at the Institute for Federalism in Innsbruck since August 2020. He has published widely nationally and internationally. Lakshmi Karlekar is PhD Research Fellow at the Department of International Studies, Political Science and History, CHRIST (Deemed to be University), India. She completed her Bachelor of Arts in History, Economics, and Political Science and Master of Arts in International Studies and secured First Rank in the University. Her PhD thesis is on Comparative Analysis of China and United States Geopolitical Energy Security Syndrome in Central Asia in the 21st century. She is currently working as the Coordinator for the project on

xii  Contributors

Cooperative Federalism in South Asia and Europe in the Department of International Studies, Political Science and History at CHRIST University. Her academic and professional expertise lay in critically evaluating the contemporary Chinese trends with its impeding hegemonic tendencies and ambitions, which is raising tensions among its neighbourhood, drawing ­ international attention. In this regard, she has various international publications in reputed journals and books. Soeren Keil, PhD, is the Academic Head of the International Research and Consulting Centre at the Institute of Federalism, University of Fribourg, Switzerland. Before that, he was Reader in Politics and International Relations at Canterbury Christ Church University in the UK. He is also Visiting Professor at the Centre International de Formation Européenne (CIFE) in Nice, France. His research focuses on the use of territorial autonomy as a tool of conflict resolution, the political systems of the Western Balkan states, and the process of EU enlargement. His recent publications include: Power-­ Sharing in Europe –Past Practice, Present Cases, and Future Directions (2021, co-­edited with Allison McCulloch). John Kincaid is the Robert B. and Helen S. Meyner Professor of Government and Public Service and Director of the Meyner Centre for the Study of State and Local Government at Lafayette College, Easton, Pennsylvania, USA. He is former Executive Director of the U.S. Advisory Commission on Intergovernmental Relations and editor of Publius: The Journal of Federalism. He is the author of various works on federalism and intergovernmental relations, and his chapter in this volume draws from his “The Eclipse of Dual Federalism by One-­Way Cooperative Federalism,” Arizona State Law Journal (2017). He is editor of A Research Agenda for Federalism Studies (2019) and Federalism (2011) and co-­editor of Courts in Federal Countries: Federalists or Unitarists? (2017), Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics (2015), Political Parties and Civil Society in Federal Countries (2015), Routledge Handbook of Regionalism and Federalism (2013), Constitutional Origins, Structure, and Change in Federal Countries (2005), and The Covenant Connection: From Federal Theology to Modern Federalism (2000). He has published widely nationally and internationally. G. Gopa Kumar is the former Vice-­ Chancellor of Central University of Kerala, Kasargod, India, and is a leading political scientist and psephologist. Gopa Kumar specializes in the areas of International Relations, Comparative Politics, and Indian Politics. He had published 12 books and over 145 research articles and successfully guided 27 PhD candidates. He is also a popular TV Panelist in Kerala and is known for objective and scientific

Contributors  xiii

political analysis. He has worked on international projects with the University of Pennsylvania, Centre for the Advanced Study of India (CASI), Coalition Politics in India and Claremont Graduate University (CGU) in California, and the University of Kerala (Kerala) Partnership. Some of his more recent books include the following: Civil Society–Politics Interface: The Kerala Experience, Manak Publishers, New Delhi, 2013, Globalization and the Plight of the Marginalized Sections in Kerala: The Case of Chengara Land Struggle, Department of Political Science, University of Kerala, 2010, Gulf Return Migration and Dilemmas of Rehabilitation, Icon Publishers, New Delhi, 2008. Patricia Popelier is Professor of Constitutional Law at the University of Antwerp and Senior Fellow at the University of Kent, Centre of Federal Studies. She chairs the Government and Law research group at the University of Antwerp and is co-­promoter of the interdisciplinary Centre of Excellence-­ GOVTRUST. She is also the Convenor of the research group on subnational constitutions in federal and quasi-­ federal systems of the International Association of Constitutional Law, member of the advisory board of the research institution Eurac: Institute for Comparative Federalism, member of the editorial board of the journal Theory and Practice of Legislation, and member of the advisory board of the journal Publius: The Journal of Federalism. She is the author of the monograph Dynamic Federalism. A New Theory for Cohesion and Regional Autonomy (2021) and many other contributions in the field of federalism. Her other research interests include constitutional review, legislative studies, constitutional principles, and governance and trust. Jairam R. Prabhu has completed his Master’s in International Studies at Christ University in 2023. He is a writer and blogger on themes related to Politics, International Relations, Education, Law, and Technology. He was the campus director for MCN-­UN Academic Impact Millennium Fellowship in 2019 and has worked at Onmanorama as the Campus Reporter publishing several campus news articles. He also worked as a freelance writer for several clients on topics of Technology and Politics. He also briefly interned at Chennai Centre for China Studies, researching Chinese Foreign Policy. Sandeep Shastri was the former Vice Chancellor of Jagran Lake City University, Bhopal, India. Dr Sandeep Shastri is a Political Scientist who was the Pro Vice-­Chancellor of the Jain University and director of its Centre for Research in Social Sciences and Education (CERSSE). He is also the National Coordinator of the Lokniti network. His research is largely in the field of a) Election Studies b) Federalism; c) Innovation in Teaching; and d) Survey-­ based research. He has to his credit 10 books, more than 40 articles in edited

xiv  Contributors

books, and over 60 articles in refereed research journals, and more than 200 articles in Op Ed pages of newspapers. He is associated with several prestigious international research bodies in the field of social sciences and education. He has been an International Consultant associated with the Forum of Federations for its Federal Democracy Capacity Building Programme in Sudan, South Sudan and Myanmar. He is a member of the Executive Committee of two important Research Committees of the International Political Science Association connected to the study of Electoral Systems and Governance. Dr Shastri played a key role in drafting the Karnataka Youth Policy by serving as the Chairman of the Drafting Committee of the Policy. Dr Shastri has lectured extensively across the world and spoken at universities in more than 30 countries in all the inhabited continents. His most recent book is titled: Electoral dynamics in the States of India, eds, 2022. Katyayani Singh has a PhD in Political Science and is working as Assistant Professor at Jagran Lake City University, Bhopal, and general secretary of the Center for Global Nonkilling India. She is also a research member of Center for Global Nonkilling, Hawaii, Human Dignity and Humanitarian Studies. She has authored a book, The Nonkilling Paradigm: For World Peace & Enlightenment. Roland Sturm is Senior Professor of Political Science at the Friedrich-­ Alexander-­Universität Erlangen-­Nürnberg, Germany. He graduated from the University of Heidelberg in 1978. He did his post-­graduation in Political Science, History, and English Language and Literature in 1979 Stanford University (USA). Roland Sturm received his PhD in Political Science from the University of Heidelberg in 1981. Later, he received a second PhD from the University of Heidelberg. He worked as Professor from 1991–1996 at the University of Tübingen and since then had an illustrious academic career. He was also Director, Centre for Region Studies from 2004 to 2011, Dean of the Philosophy and Faculty from 2005–2007. He has been Head of the Department Social Sciences and Philosophy and since 2012 research dean, Philosophy faculty. He has published 45 books and written close to 500 articles on themes such as German politics, Comparative Politics, Comparative Public Policies, European integration, and Political Economy. Krishna K. Tummala is Professor Emeritus and was Director of Graduate Program in Public Administration at Kansas State University. Besides ten books (published in India, Singapore, and USA), he has over 81 articles in refereed journals internationally, over 100 conference presentations around the world, and 70 Op. Ed. pieces in popular print mediums in the US. His last book was Politics of Preference: India, United States and South Africa (2015). The latest edition, Corruption in the Public Sector: An International

Contributors  xv

Perspective, published in March 2021 from Emerald Publishers, UK. He travelled extensively and made presentations at several national and international conferences. He served on the governing bodies of the American Society for Public Administration (ASPA) and the National Association of Schools of Public Affairs and Administration (NASPAA), and was President of public administration honor society, Pi Alpha Alpha. Among the several awards he received are Paul H. Appleby Award for “Distinguished Service to Indian Institute of Public Administration (IIPA), and Public Administration, 2011”; Fred Riggs Award for “Lifetime Scholarly Achievement in the Field of Comparative and International Administration,” SICA/ASPA, 2008; “Don Stone” Award, ASPA, for “outstanding services,” 2005; Rashtriya Vikas Shiromani (Distinguished National Development Scholar) Award, India, 2005, Mike Harder Public Administrator of the year, 2001 (Kansas), and a Senior Fulbright Fellowship, Summer, 1990. Sumudu Walakuluge is an Academic at the University of Ruhuna in the Department of Public Policy, Faculty of Humanities and Social Sciences. His areas of interests are Political and Social Theory, Political Sociology, International Relations and Foreign Policy, Democracy, Democratization and Globalization, and Social and Political Justice. Apart from his academic career, he served in Sri Lanka Foreign Service and in Sri Lanka Administrative Service. Among the positions he held were Assistant Director/Economic affairs: Ministry of Foreign Affairs of Sri Lanka, Head Consul; the Consulate of Sri Lanka, Chengdu China (Chief of Sri Lankan affairs for Sichuan, Shaanxi, Guizhou, Yunnan Provinces, and Chongqing Municipality), Third Secretary; the Embassy of Sri Lanka, Beijing, China, and Assistant Director (Overseas Administration); Ministry of External Affairs, Sri Lanka. His recent publications include the following: An Introduction to Feminism (co-­ authored), Friedrich Ebert Stiftung, Colombo, 2006.

ACKNOWLEDGEMENTS

The book Cooperative Federalism in South Asia and Europe: Contemporary Issues and Trends has been the result of a collective effort. At the outset, we express our thanks and deepest gratitude to Dr Joseph Chacko Chennatuserry, the Vice-­Chancellor and Dr Anil Joseph Pinto, Registrar of CHRIST (Deemed to be University), Bangalore, India for their support, guidance and encouragement. We would like to also thank Dr Vagishwari SP, Head of the Department of International Studies, Political Science and History as well as Dr Madhumati Deshpande, Co-­ordinator of the Department for their constant support at every stage of the project. Special thanks to each one of our colleagues from the Department of International Studies, Political Science and History for their constant encouragement. This project would not have been possible without our funding agency Hanns Seidel Foundation. We appreciate the efforts of Mr Volker Lennart Plan, Mr Rahul Khera, and the entire HSS team for their constant support for the project. We extend our heartfelt gratitude to all our contributors whose scholarly and insightful papers have made this volume possible. We sincerely thank each one of them for their time, cooperation, and patience. We specially thank our Project Coordinator, Ms Lakshmi Karlekar, PhD Research Fellow at the Department of International Studies, Political Science and History, whose stewardship took care of all the major academic and administrative requirements and deadlines related to the project. We recognize her immense contribution towards curating this work. Further, we thank Mr Rishvath Reddy, Adjunct Faculty at the Department for his valuable contribution towards compiling and editing the book. Lastly, the book could not have been published without the efforts of the Routledge team led by Mr Shashank Shekar Sinha, Ms Antara Chaudhary, Ms Brinda Sen, Ms Ria

Acknowledgements  xvii

Goyal and Mr Yassar Arafat who have been a pillar of strength for us. Their timely reminders and constructive feedback have significantly added to the quality of the book. We also thank the support extended to us by the various administrative departments of CHRIST (Deemed to be University) in expediting all administrative matters relating to the project. We thank them all.

INTRODUCTION M.J. Vinod, Stefy V. Joseph, Joseph Chacko Chennatuserry and Dimitris N. Chryssochoou

The twenty-­first century has been witnessing a global federal resurgence, distinguished by conversations focusing on interdependencies, multiculturalism, overlapping jurisdictions, multilateralism, multiple centres of policy-­making and multiple notions of citizenship. Any assessment of cooperative federalism needs to go beyond institutional structures by incorporating images of diversity, pluralism, identity, issues of empowerment and democratization. Cooperative federalism facilitates cooperation among the national, state and local governments. It perceives the federation and the states as complementary parts of an arrangement where sovereignty is shared. Federalism as an ideational construct assumes various manifestations, patterns, developmental paths and institutional experiences in South Asia and Europe. Though it is territorially rooted, federalism can be considered as a work in progress, since federal architectures and experiences vary. These federal experiences have led to the use of different terms like cooperative federalism, dual federalism, administrative federalism, competitive federalism and participatory federalism. Technically, Cooperative Federalism involves complex processes and relationships between two or more levels of government. It also represents a set of values, attitudes, perceptions, civic dispositions, a federal creed and federal culture. There are various kinds of federalism, federal dynamics, federal cultures and federal experiences, which make federalism essentially a contested idea in both South Asia and Europe. As Robert Smiley argues, “Cooperative federalism is in essence a series of pragmatic and piecemeal responses by the federal and provincial governments to the circumstances of their mutual interdependence”. Some scholars would argue that cooperative federalism is better understood as a modality rather than as a principle. DOI: 10.4324/9781003461197-1

2  M.J. Vinod et al.

Modality provides for greater flexibility and fluidity, thereby enhancing the possibilities for great cooperation and coordination. The essence of the book is on how the division of competences and the distribution of powers have evolved and changed in South Asia and Europe, given the changing circumstances at the local, national, regional and global levels. Some of the papers analyse the challenges and opportunities in the relations between the federal government and the constituent units through various case studies. The book brings out the complexities of intergovernmental relations between the federal government and the constituent units in South Asia and Europe. It emphasizes the fact that federalism holds out cause for hope, given the importance it places on grassroots democracy and popular participation. The fact is that no federal order can be sustained without a strong citizen identification with the federal polity. The chapters in the book focus on many important themes, issues and research questions relating to the functioning of cooperative federalism in South Asia and Europe. Some of these include the changing economic realities, fiscal complexities, the challenges facing the existing structures of governance, the changing aspirations in a globalised world and their impact on the federal systems in South Asia and Europe. A variety of critical themes and issues such as the civic and constitutional basis of federalism, ethno-­national diversity and federalism, fiscal federalism, allocation of federal grants, federal decentralization, the quality of governance, federalism and institutional innovations are addressed in this book. These seem to be some of the common challenges facing federal systems in South Asia and Europe. Most countries in Europe have their own histories and experiences of governance. There is a mix of federal and unitary systems in Europe. Germany, for example, is very different from the typically more centralized unitary European states such as Britain, France and Sweden. History also has impacted on the nature and working of the federal policies in Europe. For example, the German federation was influenced by the Holy Roman Empire, the German confederation after 1815, the Bismarck Reich after 1871, the Weimar Republic from 1919 to 1933 and the Third Reich from 1933 to 1945. In the context of the European Union, three major arguments can be extended for the shift from dual federalism to cooperative federalism. These include the following: the decline of constitutional exclusivity, the decline of legislative exclusivity and the constitutionalization of cooperative federalism through the principle of subsidiarity. Most of the countries of South Asia continue to go through experiences like dominance of the federal governments, scenarios of regional assertiveness, conflictual federalism and cooperative federalism. Most states in South Asia have been caught between the need for national unity on the one hand and regional autonomy on the other. The challenge has been to practice cooperative federalism in both letter and spirit. In the Indian context, federalism seems to be a natural outcome of the rich and complex diversity of the

Introduction  3

country. Federalism reflects institutional, cultural and linguistic diversity. It is federalism which can preserve this diversity. Technically, federalism can also play the role of checks and balances. The challenge is to make it work effectively and harmoniously. Dr. Ambedkar puts it across very effectively: The Constitution is a federal constitution… The Union is not a league of states nor are the states the agency of the Union deriving powers from it. Both the Union and the States are created by the Constitution and both derive their respective authority from the Constitution. Most federal systems have come under considerable stress, impacting on intergovernmental relations. Jurisdictional issues, economic disparities, differences over financial allocations and sharing of resources and territorial conflicts have resulted in tensions. In Germany, for example, these situations have resulted in a triangular constellation of interests between the federal government, the rich Landers and the poor Landers. Similar scenarios seem to emanate from the other states of Europe and South Asia. The book is both original and refreshing. Cooperative federalism is intended to benefit both the federal government and the constituent units, as it is predicated on the possibilities for consultations, discussions, negotiations and joint decision-­making. In many countries in Europe and South Asia, there has been a continuous shift from competitive federalism to cooperative federalism, though this has not been an easy process. The reality is that most federal states have been subject to both admiration and criticism. The struggle is to arrive at the right balance between the federal government and the constituent units. The book is divided into four parts: Part I – Cooperative Federalism: Conceptual Issues On a conceptual note, Cooperative Federalism, also known as marble cake federalism, is a governmental structure navigating and operating on a flexible relationship between the federal government and the constituent units. Historically derived from the field of cooperative economics, it emphasizes the idea of working together to resolve issues and lay out betterment policies as outlined by J.T.W. Mitchell, Charles Gide, Paul Lambert and Beatrice Webb in their work “The Co-­operative Movement in Great Britain”. This complex interdependence is based on the “internal give and take” system where both the governments need to have a mutual and complementary expression of domestic and foreign policies. Thus, the amicable joint effort would preserve the union and promote the common welfare for its citizens. With the rising advocacy of concerns and issues, nations have to construct a national development agenda with a strong feedback mechanism which would offer a healthy nexus between their functions. The federal government

4  M.J. Vinod et al.

also needs to model laws which would give enough space to maintain autonomy for the constituent units to manoeuvre without interference. This, in turn, would help to develop the true spirit of democratic decentralisation of administration on the lines of the principle of subsidiarity. Dimitris N. Chryssochoou in his chapter “European ‘Syspondia’: Theorizing a Late-­modern Political Aggregate” has theorised aggregates termed unions with that of autonomous units called politeiai, which form the larger integration called the politeia. It deals with how they work in a system and also its hindrances in policy-­making. Theorizing symbolizes the culture and evolution of collective symbiosis among diverse parts and in addition to valuable theory insights, has deepened our understanding of how such aggregates work or fail from working. The chapter at large revisits the thought on how the politeia and as politeiai along the lines of the European Union as a late-­modern syspondia can form a plural structure. John Kincaid in his chapter “Cooperative Federalism in the United States through a Conceptual Lens” explains how Cooperative federalism originated during the 1790s despite the US Constitution having a dual federalism structure. Kincaid highlights the role of US federalism as an important decision-­maker. The author outlines a number of principal tools to induce state and local cooperation. He further analyses the important advocates of state and local cooperation with federal policies, that is to say, nongovernmental organizations; state and local administrator lobbyists; public sector union lobbyists and litigators; interest-­group lobbyists; citizen lawsuits; and congressional oversight. Essentially, Kincaid observes that there are six social and political forces that facilitate the state and local administrative cooperation with federal policies. He brings out the uniqueness and distinctiveness of US federalism and also how its experiences can impact on regions like Europe and South Asia. Patricia Popelier in the chapter “Federalism and Democracy: The Need for a Differentiated Approach” has outlined the theoretical relationship between federalism and democracy. In scholarship, the author has spoken about Burgess’ perception of liberal democracy as a value underpinning so-­called mature federal systems, Riker’s “ideological fallacy” and Hueglin’s plea to take federalism more seriously as a principle in its own right. The author analyses the importance of federal and democratic values in terms of how they reinforce each other. Popelier distinguishes between different forms of federal systems, including dual and cooperative federalism, and types of democratic government. Part II – Cooperative Federalism in India Cooperative Federalism in India reflects an ideology of a strong relationship between the union government and states. It guides all the governing bodies to come forward and cooperate to resolve common social, political,

Introduction  5

economic and civic problems. India takes great pride in describing itself as the world’s largest democracy. India opted for a quasi-­federal structure after independence. The term “federal” has not been mentioned in the Constitution, but the working of Indian democracy is essentially federal in structure. While democracy represents the majority opinion, federalism encapsulates, accommodates and links it to the voice of the minority, lending a flavour of social justice. This ensures the harmonious functioning of the entire system. Federalism and cultural and ethnic pluralism have given the country’s political system great flexibility and the capacity to withstand stress through accommodation. However, the continuation of the same requires not simply federalism but cooperative and constructive federalism. Various governments including the present one have been stressing the need to leverage the potential of cooperative and competitive federalism for achieving all-­around inclusive development in India. In Cooperative Federalism, the Centre and States share a horizontal relationship, where they “cooperate” in the public interest. Thus, the Indian federation represents a set of values, attitudes, perceptions, civic dispositions, a national creed and cultural dynamics. Krishna K. Tummala in his chapter “Fortunes of Federating Units in India” has highlighted the role of the Supreme Court as an important player in defining the relative powers and relationship between the Centre and the federating units, that is to say, States and Union Territories (UTs), based on the constitutional provisions and commission reports. The author has examined features like the distribution of powers between the Centre and States; devolution of resources; the dominant party theme; All-­ India Services; Central Planning; Emergency Powers; and the roles of Governors and Lieutenant (Lt.) Governors in the States and Union Territories. G. Gopa Kumar in his chapter “Civil Society and Cooperative Federalism in India: The Need for a Conceptual Enquiry” elaborates on how federalism as a concept abhors concentration of powers and subscribes to a philosophy of sharing and shaping powers across regions and governments. The author explains how improvements in federal administration in areas like constitutional division of powers between national and provincial governments, decentralization of powers between various structures of government, devolution of powers to lower bodies, increase in the role of state governments, space enjoyed by the civil society groups and nongovernmental bodies and judicial review functions and judicial activism of the Court will lead to ensuring harmony and smooth liaison. The author also shows how citizen identities and expressions are camouflaged by vocal, traditional identities and politics and how policy-­making has been conditioned by these factors to a great extent. Sandeep Shastri and Katyayani Singh in their chapter “Emerging Trends in Indian Federalism: Collaboration, Competition and Coordination” have

6  M.J. Vinod et al.

highlighted how Indian federalism and democracy go hand in hand. At the forefront, the chapter observes that the expansion of democratic space highly depends on the electoral competition, the impact of coalition on the working of parliamentary federal democracy which in turn, reflect on the changing contours of Indian federalism through the prism of politics and party competition between the centre–state dynamics. The authors further justify the need for intergovernmental cooperation between the UPA and the NDA regime at large. MJ Vinod, Lakshmi Karlekar and Joseph Chacko Chennatuserry in their chapter “The Federal Dynamics of Indian Foreign Policy: Issues, Concerns and Trends” enumerate the ideational constructs of federalism in India under the United Progressive Alliance (Congress) and the National Democratic Alliance (Bharatiya Janata Party) regimes. The authors have debated at length how the left-­wing and right-­wing curate their foreign policy and resolve issues pertaining to their national sovereignty. They have analysed the issues and crossroads of federal coalition, constituent paradiplomacy and how India is carving a niche for itself in the globalized world through deliberation, bargaining, consultation and involvement of the states in the decision-­making process in the context of foreign policy-­ making and implementation. The chapter also dwells on the new activism phenomenon that includes a cocktail of factors like economic liberalization, diffusion of technology and the decentralization of political power. The dependence of coalition governments on regional parties in India has resulted in a subtle power shift when it comes to foreign policy prioritization and perceptions curated from domestic imperatives. This makes the leverage of the regional parties remain significant in foreign policy-­making wherein there is greater propensity on the part of the Central Government to take regions and states into confidence. Hence, at any given time, domestic compulsions influence how states act and react to various foreign policy issues; thus, engaging state governments in foreign affairs can be a “force multiplier” for Indian foreign policy. Part III – Cooperative Federalism in Europe The European construction of federalism has been a source of inspiration. Many European politicians like Robert Schuman and Joschka Fischer have repeatedly emphasised the need for “cooperative” federalism to meet the threat of over-­centralization, as seen in countries like Great Britain and France. The encumbering need to preserve autonomy between federal entities by addressing the diverse functional necessities has made the European Union emphasize the constitutional principles of subsidiary and complementary competencies. The Maastricht Treaty and the Treaty establishing a Constitution for Europe did make a passing reference to federalism but in the last 20 years, the ideational construct of federalism has loomed

Introduction  7

larger, making several nations in Europe to practice it. Countries like Germany, Italy, Belgium, Luxembourg, Denmark and France have their sovereign rights shared between the supranational, national and subnational institutions, with each federal unit representing their say in the central decision-­making processes. The EU in spite of having spatial and territorial division of power has not wedded to the concept of statehood. The EU is seen as an international organization or confederation of states lacking a federal entity. Nevertheless, the evolving concept of federalism has added another dimension of “federal continuum”. It is here where the two ends of federal arrangements between confederation and federation are perceived as two sides of the same coin. The state-­centric ontology has been refined to economic communities/integration, and not necessarily based on a link between citizens and states or within a fixed territorial boundary. The evident examples are the European Economic Community (EEC), Single European Act (1986), European Parliament (EP), European Economic and Monetary Union (EMU) etc. Certain states have remained a part of the larger institutional framework but have internally also strengthened their federal structure to increase competencies in their industries and foreign trade. One among them would be Germany, which is the one of the largest European nations practising federalism, which is made up of 16 semi-­autonomous states. Each has their own constitution and how it has to be governed as outlined in the 1949 Basic Law document to which they are subservient to. Thus, European federalism is a contested yet evolving idea. Peter Bussjäger and Mathias Eller in their chapter “COVID-­19 and Its impacts on Cooperative Federalism in Austria” have dwelt upon the outbreak of the pandemic in spring 2020 in Austria. The lockdown presented the Austrian state with immense challenges of having to decentralize decisions under immense time pressure. The authors worked on the hypothesis that successfully combating the COVID-­19 crisis in federal states inevitably requires close coordination between the federal and state governments. Roland Sturm in his chapter “The Political Economy of Cooperative Federalism and the Implementation of Cooperative Federalism in Germany” concentrates on steering intergovernmental relations, which has determined the importance of political cooperation. Sturm has examined the restrictions/restraints/opportunities of taking decisions through co-­operative federalism. The author has elaborately dealt with federalism’s legal efforts to accommodate social conflict by decentralization and power-­sharing. Further, he has described the consequences of globalization for regional economic differences and regional policy responses focusing on German Federalism. Soeren Keil in his chapter “Federalism and Power-­ Sharing as Modes of Diversity Management in Europe” has explained on a variety of

8  M.J. Vinod et al.

instruments to manage cultural, religious, linguistic and ethnic diversity across European countries. The author has discussed the two most complex features, viz., territorial autonomy through the provision of federalism and complex inclusion of different groups through consociational power-­ sharing. The case studies of Switzerland, Belgium, Bosnia and Herzegovina are used to demonstrate the high degree of coordination and consensus. Part IV – Cooperative Federalism in South Asia The federal dynamics in India, Pakistan, Nepal and Sri Lanka are very distinct in nature. They are formed from their varying economic, political, social, cultural fabric, distribution of power elites, ruling class, market forces, media and electoral party systems who frame a constitutional basis for governance. One needs to understand the experiences of these federal countries to determine their trends, patterns and challenges. The essential discourse of democracy and governance is put to test in the best situations of ethnic and regional conflicts and separatist and military undercurrents. In spite of the key divergences and similarities, these nations have resorted to federal political solutions as their sole viable route to avoid conflicts on a larger scale. One can also observe that with the onset of cooperative federalism in South Asia, there is also a growing resentment among states (horizontal competition) or between the centre and states (vertical competition) arising from competitive federalism. Hence, it is very reasonable to point out that there is a need to alter and revert back to Cooperative Federalism, which provides an assuring ground for advocacy of devolution of powers from the centre to its peripheral units of governance. Upul Abeyrathne and Sumudu Walakuluge in their chapter “Executive Absolutism and Decentralized Governance: A Study of the Sri Lankan Provincial Council System” have analysed the challenges to Sri Lankan democracy and federal structures as it is unable to find an amicable and satisfactory solution to the ethnic conflict which continues to plague the economic growth and prosperity of people despite causing enormous human suffering. They have seen several accords, amendments where the democratic aspirations of the minority and majority are being effectively deprived by the president’s absolute power. Available studies on federalism/decentralization in Sri Lanka have made only passing remarks on the link between executive absolutism and decentralized governance. Hence, it raises two pertinent questions, viz., whether decentralization is programmed to fail or made to fail by the majoritarian politics carried through the absolute executive. Both are discussed in detail in the chapter. Thaneshwar Bhusal in his chapter “Cooperative Federalism in Nepal: Practice and Prospects” argues that Nepal is one of the youngest federal countries in the world with seven years of experience till date. Nepal has three levels of government, federal, provincial and local governments,

Introduction  9

with a hope that each level of government shall operate in accordance with the principle of cooperative federalism. The author examines the political, administrative and fiscal dimensions of cooperative federalism, which has been widely used in the studies of intergovernmental relations in federal countries. Bhusal analyses the institutional approach and intergovernmental approach by highlighting the policy-­making, implementation and service delivery dimensions. Stefy V. Joseph and Jairam R. Prabhu in their chapter “Cooperative Federalism in a Multinational Country: Examining the Case of Pakistan” have discussed the diversity or plural society in terms of ethnic, linguistic and religious composition present in Pakistan. An evident failure of federalism in Pakistan can be witnessed through the 1971 creation of Bangladesh, which showed that Islamic identity was not enough to prevent the country from splitting up. Pakistan is in this perplexed problem to resolve the demands for more autonomy, and concern of ethnic separatism being more prominent these days. The need for Cooperative Federalism on dealing with internal conflicts and ensuring economic progress in Pakistan, has been elaborated in the chapter.

PART I

Cooperative Federalism Conceptual Issues

1 EUROPEAN ‘SYSPONDIA’ Theorizing a Late-Modern Political Aggregate Dimitris N. Chryssochoou

Preface

Theorizing this fascinating aggregate called ‘European Union’ (EU) is telling of the political forms it may or may not take; there being those interested in the larger picture; others in capturing parts of it or their interplay; and still others in theorizing itself. But they all embrace Stoker’s (1995, p. 17, quoted in Rosamond, 2000, p. 4) point: ‘Theories are of value precisely because they structure all observations’. As put by Rosamond (2000, p. 5) and Groom (1990, p. 3), respectively: ‘Theorizing intellectualizes perceptions. It is not that theory just helps us to identify that which is significant’, and: ‘Theory is an intellectual mapping exercise which tells us where we are now, from where we have come and to where we might go’; or by Singer (1960, p. 431, 441): One of the most promising developments in the intellectual growth of a discipline is the appearance of a concern for theory on the part of its students and practitioners. It might even be argued that, in the absence of such a concern, we have no discipline at all but merely a crudely delimited sphere of inquiry. And: ‘all agree that the growth of theory is both desirable and feasible. Let us get on with the job!’. Horizons

Nearing two decades since Europeans debated and, in two founding states, rejected the Constitutional Treaty, another deliberative process has been set in DOI: 10.4324/9781003461197-3

14  Dimitris N. Chryssochoou

train under the heading ‘Conference on the Future of Europe’. But it is doubtful whether its final product will result in a new architectural design for Europe’s future polity shape, for the current condition reveals notable disjunctions among states on a range of issues, impeding progress towards ‘ever closer union’. As ‘national populism’ (Eatwell & Goodwin, 2018) also persists, those in favour of a federalist direction are in retreat, for one may even question whether the EU can still be sustained as a ‘polity’. How, then, to redraw a portrait of ‘European “politeia”’, to recall Tombeur (2013, p. 117), among ‘fellow-­citizens’, or of a ‘Republic of Europeans’ (Lavdas & Chryssochoou, 2011)? – of ‘symbiotes’ in Althusius’s (1995 [1603/1614]: p. 19) sense: ‘participants or partners in a common life’; or, as ‘many peoples, one demos’ whose members direct their democratic claims to and via the common institutions? ‘Demos’ is defined by Nicolaidis (2004, p. 81) and Tsatsos (2009, p. 49), respectively, as ‘a group of individuals who have enough in common to want to and to be able to decide collectively about their own affairs’ and as ‘the collective subject that arises out of the diversity, the dynamics, and the particularities, of the sum total of the social base that organized itself under the ­auspices of an institutional power’. Can there be a common life among multiple co-­evolving ‘politeiai’ sustaining, as Bellamy (1999, p. 190) put it, ‘a shared sense of the public good’? From Nicolaidis (2004, p. 77): ‘What should a Europe for all, an EU that most of us can like, if not love, look like?’ In revisiting these questions, what follows looks into various forms of union which, for all their differences in origin, name or shape, invoke a language relevant to Europe’s late-­modern political aggregate. Enhancing the bonds among Europeans is crucial for the viability and vitality of their common association, without this necessitating an abrupt restructuring of constituent cultures. Thus, a plurality of ‘distinct’ but ‘constituent’ units: distinct, in retaining their constitutional orders and constituent, in reaching higher levels of ordered symbiosis, combining ‘civic unity in polycultural diversity’ (Lavdas & Chryssochoou, 2007). Following Castiglione (2009, p. 87), the solution may lie more in imagining how an interlocking political space may need interlocking systems of trust, solidarity, and allegiances –none of which may need to be absolute– than in the assumption that we can reproduce the absolute demands of national citizenship at a European level. As co-­evolutionary practices of authority-­sharing are not about the constitution of a federal order, but rather of a cooperative scheme that transcends pre-­established notions of international authority, this vision takes the EU synchronically as ‘politeia’ and as ‘politeiai’, a synchronic quality at least partly internalized among ‘fellow-­Europeans’. As Preuβ (2015, p. 218) notes, ‘they share a conjoint law which regulates important spheres of their everyday life and thus creates a quite peculiar “We”’.

European ‘Syspondia’  15

This vision does not negate a conception of the EU as an ‘organized synarchy’ (Chryssochoou, 2009, p. 131–146); ‘synarchia’ as ‘joint administration or government’ (Liddell et al. 1996, p. 1699) is a term answering to Aristotle's Politics (VI.14 1298a14; see also Strabo’s Geography 5.3.2 and Polybius’s Histories 27.2.11). Rather, it builds on the idea of sharing among co-­evolving democracies, reformulating their perceptions of sovereignty given the depth and intensity of co-­determination that has developed amongst them. It confirms states’ constitutive role in the larger political unit, for they still determine, albeit collectively, in a co-­evolutionary way, the pace and range of integration. This is key to the idea that sovereignty cannot be convincingly detached from the state parts. Rather, the whole idea is about strengthening the latter through, not despite, their collective capacity to transcend the classical self-­rule. Taylor (1996, p. 97, 2008, p. 7) asserts: ‘The states became stronger through strengthening the collectivity’, and: ‘Integration involved the adjustment of national sovereignty to new circumstances, but not its abandonment. Central institutions, and the European legal system, had been strengthened without weakening the states’. The latter, meeting the demands of shared rule, have not lost sight of their (claims to) autonomy and diversity: what makes for their individual integrities; they continue to accommodate their mutual concerns in ways that make sovereignty still valid but not reminiscent of largely idealized notions of territorial self-­rule (Krasner, 1999), while retaining control over the extension of ‘public powers’ (Grimm, 2015, p. 43–46) to a collective ‘centre’. This accords with Sbragia’s (1992, p. 289) view of ‘a federal type organization to operate without a center traditionally conceptualized […] constructed by member governments without its being detached from the collectivity of constituent units’, thus posing a challenge to the view that the EU has gained its own locus of sovereignty. Grimm (2015, p. 50) notes: ‘The EU does not have a portion of sovereignty. The EU has but a portion of the public powers’. The ‘centre’ still retains, in specific domains, a key role, as states enhance the centripetal dynamics of the system when they so wish; also, claims to ‘ever closer union’ still rest, albeit not exclusively, upon states investing in the cumulative rewards of their symbiosis but not in a federal state. In the second decade of the twenty-­first century, the big issue was not that of advancing ‘ever closer union’ in any discernible federalist means, but to keep it in harmony with the persisting qualities (and demands) of authority-­sharing in a largely state-­controlled ordering: states were increasingly linking the value of codetermined sovereignties to the preservation of a sensible, yet politically fragile, level of unity. Also from the evolutionary interplay of centripetal and centrifugal trends, politics in the larger order still relied on states’ wilful disposition to maintain cooperative practices regarding the (interpretation of) the rules of the game and a variety of modes of institutionalization. Sovereignty was no longer as visible as it used to be, but it did not cease to exist by being surrendered to a superordinate ‘centre’. The order of the day called for a

16  Dimitris N. Chryssochoou

consolidation of sharing, provided that the latter was of an expression of states-­led codetermination. States were attuned to the demands of the whole with adequate safeguards; they ruled by also being ruled through sharing. ‘Organized synarchy’ builds on an earlier depiction of the EU as a ‘confederal consociation’ (Chryssochoou, 1994, 1998) – drawing from Taylor’s (1993, p. 114) view of the EU as a ‘symbiotic consociation’ – and is called upon to organize symbiosis among diverse coevolving units; its post-­state-­ centric quality being an internalization of the right to be involved in their partners’ affairs; a cultural achievement in its own, for the EU has increasingly become an integral part of members’ life and parlance; them being conscious of their collective predicament: that more is to be achieved by joining forces. From Krasner (2004, p. 1085–1086): The European Union is an example of an institutional arrangement that has transgressed conventional sovereignty rules so successfully that it is hardly seen as being a transgression at all […] The European Union has been so successful because it has created over time a set of self-­enforcing equilibria And Preuβ (2015, p. 219): The vision is, rather, the idea of solidarity grounded on the mutual recognition of otherness and the development of modes of cooperation and, yes, also of collectively binding decisions taken by “others” whose bindingness is rooted in institutional devices which encourage civic solidarity and the tolerance for otherness. Following Glasgow’s (2017) ‘Letter from Berlin’, itself a ‘spondȇ’ to the values of others: ‘Walking through Berlin this week it struck me how there’s a beautiful flow of multiculturalism here – so many different people, cuisines, languages. It somehow works. This gives me hope’ – as does to all democrats alike. Thesis

Europe has come a long way since its inception and is worthy of the term ‘polity’ (Hix, 2007; Jachtenfuchs, 2007) for it offers an architecture for the symbiosis of diverse polities. ‘It is a polity’, writes Preuβ (2015, p. 220), ‘in a world where people have become neighbors and still remain strangers with respect to each other and accept mutual responsibilities’. After all, as Cohen (1971, p. 47) asserts, ‘there can be no larger part unless the larger part and the smaller parts are indeed parts of one whole’. Thus the claim to embrace Europeans’ concerns about their union and/as their future – a ‘spondȇ’ to the latter as an affective calling for a commonly shared life. As Strabo tellingly noted in his Geography (9, 3.5, 1927, p. 355; quoted in Hudgens, 2013, p. 73),

European ‘Syspondia’  17

‘the greater the number of the sojourners and the greater the number of the places whence they came, the greater was thought to be the use of their coming together’. In his welcoming address to the 15th Informal Meeting of the ‘Arraiolos Group’ held in Athens on 11 October 2019, the then President of the Hellenic Republic Prokopios Pavlopoulos (2019) called for a ‘“spondȇ” to the European construction’. As stated in the resulting ‘Athens Declaration’ (2019): ‘There is no contradiction in loving one’s village, one’s city, one’s region or one’s nation and, at the same time, being a committed European’. A thesis of the EU through the lens of ‘syspondia’ (in Greek, ‘συσπονδία’, answering to Kumas’s translation of Balbi’s Geography, 1838, p. 98) points to a bond shared among diverse ‘politeiai’ aspiring to a larger one without negating their own. As a ‘genus concept’, ‘syspondia’ embraces a rich variety of union ‘species’, most notably ‘federation’ and ‘confederation’. ‘Federation’ denotes a composite but sovereign political unit out of discrete coevolving constituent unities or, from Burgess (2006, p. 2), ‘a distinctive organizational form or institutional fact the main purpose of which is to accommodate the constituent units of a union in the decision-­making procedure of the central government by means of constitutional entrenchment’. In Duchacek’s (1970, p. 233; quoted in Lister 1996, p. 20) words, ‘the purpose of the […] federal structure is either to create one nation out of many or to preserve a nation by a timely recognition of its inner diversity’. Keeping in mind Watts (1999, p. 7) account of federations as ‘a particular species in which neither the federal nor the constituent units of government are constitutionally subordinate to each other’, they do encompass a wide variety of power-­sharing arrangements. The ancient Greek term from which the word ‘ομοσπονδία’ (‘federation’) derives is ‘ὁμόσπονδος’: the person who, in establishing an amicable, solidary, cultic or ritual bond with others, shares a libation. The term answers to Herodotus’s Histories (9.16), while in both Aeschines’s On the Embassy (2.163) and Demosthenes’s On the Crown (18.287), there are references to ‘ὁμοσπόνδων’ and ‘ὁμόσπονδον’, respectively. Doukellis (2004, p. 13, my translation) writes: It is known that the term ομοσπονδία as well as its Latin-­derived synonyms, Föderalismus, federazione, federation etc., relate directly to the divine: σπένδω/σπονδή and fides/foedus […] They originate from the religious vocabulary of Greeks and Latins, but were used, fairly early on, to declare the conclusion of an agreement, of whichever content, brought under the guarantee of the divine. As to ‘confederation’, it is a union of (co)sovereigns or, from Forsyth (1981, p. 15, 16), who uses the term ‘federal union of states’, ‘a constituted unity capable of making laws for its members, however it is not the constituted unity of one people or nation, but a unity constituted by states’, and:

18  Dimitris N. Chryssochoou

The contract which lies at its base is not a contract to abide by the will of the majority regarding the government to which we all shall be subordinate, but simply a contract between equals to act henceforth as one. He adds, ‘it is a union that falls short of a complete fusion or incorporation in which one or all the members lose their identity as states’, also stating that ‘it is a union which is specifically “federal” in nature. Forsyth (1981, p. 1) This means that it is based on a foedus or treaty between states, and not on a purely one-­sided assertion of will’. As defined by Elazar (1994, p. xvi): ‘Several pre-­existing polities joined together to form a common government for strictly limited purposes […] that remains dependent upon its constituent politics in critical ways and must work through them’; or, by Ola (1968, p. 282), ‘an extensively decentralized system with sovereign multi-­units’. Also, from Forsyth’s (1995a, p. 64) account, the constitution of a confederation is not, by definition, the unilateral act of one people […] considered as a homogeneous entity […] a confederation is formed precisely because a nation or people in this sense is not deemed to exist, because the sense of identity and thus of trust between the citizens of each member state does not run to that depth. Moving on to classical forms, ‘sympoliteia’ is a collective polity setting for uniting city–states, often referred to as ‘koinon’ – according to Forest (2000, p. 280–292; quoted in McInerney, 2013, p. 467), a ‘pre-­polis polis’ – or ‘league’ (York, 1919; Beck & Funke, 2015). Following Beck & Funke (2015, p. 14, 25), ‘in the first half of the fourth century BCE, the word is introduced by means of a verb, sympoliteuein, which means, literally, to share in politics or in a common politeia’ and that ‘a koinon, unlike a tribe or kinship group, is characterized by the existence of a federal center which embodies genuine state-­authority […]’, while for Walbank (1976, p. 33), it is ‘“an act of union” […] and “the union itself” which results from that act’. Other classical forms include ‘symmachia’, an alliance of (‘poleis’-) states – from Figueira & Jensen (2013, p. 495; Meiβner, 2012; Lister, 1999): ‘Their ostensible purpose was not to create a new political identity which superseded the polis, but to harness cooperative behavior among city-­states that retained significant political functions locally’. Yet, for Forsyth (1995b, p. 14), ‘the closest co-­operation and the closest alliance is still not a union, and it is when states form unions, whether it be for economic ends or for security purposes or for both, that they cross the threshold of federalism’; and ‘amphiktionia’: ‘An association among independent tribes or City States, whose members met at stated times round a general sanctuary for worship’ (York 1919, p. 2). One may also add the form ‘international union’ which, in Ruta’s (2010, p. 275) words, is ‘a supranational jurisdiction that may exercise a policy

European ‘Syspondia’  19

prerogative on behalf of member countries’. As to the notion of ‘association’, it rests on units’ will to become or remain part of a general system of shared rule. ‘In the most general sense’, writes Weale (2005, p. 51), ‘a political association has the ability to make rules that are treated as authoritative for the members of a collectivity’, while Kinnas & Groom (1990, p. 74, 75) assert: Associations, then, as a “fraternal family of nations” –both governments and peoples– have both an internal dimension in the pursuit of a wide range of goals by a variety of actors at and across different levels within the ambit of the association. They also have an external dimension in offering a helping and healing hand to others beyond the confines of the association’. And Association is a flexible, open, decentralized and collaborative system which enables governments and peoples, states and IGOs to work together to the extent and in the form which suits them best individually. It is a useful tool in a world in which identity is a key value, but one in which complex interdependence accounts for a substantial part of the general well-­being. As to the political form called ‘commonwealth’, it is taken here not as a single/unitary ‘republic’ or ‘politeia’, but as a cooperative system of variously, including culturally, interdependent units sharing certain values, historical ties and a will to pursue common ends. Noteworthy is MacCormick’s observation on the depiction of EU as a commonwealth of post-­sovereign states, whereby, he states that both member states and the Union are commonwealths, one more intensive and localized, more strongly rooted in a sense of tradition and personal identity and loyalty, the other more extensive and broadly inclusive, as there is Bryce’s (1888; Aroney, 2002, 2009) view of late nineteenth-­century United States as a ‘Commonwealth of commonwealths’. But confined to its interstate version, ‘commonwealth’ lacks a powerful political ‘centre’, resting instead on state coordination mainly in areas of functional interest, not on claims tο a federal end. Two additional political forms are also worth noting, ‘Eidgenossenschaft’ and ‘Staatenverbund’. The former, meaning ‘oath fellowship’ (Forsyth, 1981, p. 18), is taken by Burgess (2006, p. 200, 82) as ‘an association bound together by reciprocal oaths’, noting that ‘the notion of Eidgenossenschaft refers to a covenant, a moral basis, to preserve and promote the policies of difference and diversity’ – or, from Kouma’s translation of Balbi’s Geography (1838, p. 361) into Greek, ‘συνορκίαν’. Turning to the concept of ‘Staatenverbund’, Leibfried et al. (2009, p. 323, they refer to Kirchhof, 1992, 1999) assert:

20  Dimitris N. Chryssochoou

In a concession to the special nature of the European confederation, the Constitutional Court judge Paul Kirchhof invented another, rather tempered and opaque, version of the intergovernmental view and called the EU a Staatenverbund, a composite or network of states. The German Constitutional Court explains in its ‘Lisbon ruling’ (BVerfG, 2 BvE 2/08, 30.6.2009, par. 229C, quoted in Mayer & Wendel 2012, p. 143): Verbund covers a close long-­term association of states which remain sovereign, an association which exercises public authority on the basis of a treaty, whose fundamental order, however, is subject to the disposal of the Member States alone and in which the peoples of their Member States, i.e. the citizens of the states, remain the subjects of democratic legitimation. In a way, it approximates to an earlier view of the Community by Taylor (1978, p. 317) as ‘managed Gesellschaft’: ‘a decentralized, though co-­ ordinated, system in which participating actors […] have a high level of interdependence with each other, but, nevertheless, preserve and even augment their autonomy’. Or, going even earlier, it is somehow close to Puchala’s (1972, p. 278, 283) ‘Concordance System’ which he defines as ‘an international system wherein actors find it possible consistently to harmonize their interests, compromise their differences and reap mutual rewards from their interactions’, noting that ‘mass populations within the Concordance System need not be assimilated into a supranationality’. ‘Staatenverbund’ may be more than a state-­ controlled association, but it is still a treaty-­ based confederalist-­inspired union as opposed to a federal-­type ordering that transcends the sovereign qualities of the component state orders. Finally, following Eleftheriadis’s (2012, p. 62, 2020; p. 137, 138) Kantian-­ inspired depiction of the present-­day EU as a ‘cosmopolitan union of peoples’: ‘The members of the European Union have not created a new constitutional order but have, nevertheless, created something which is legally authoritative and which has changed their constitutional laws for good: a voluntary “union of peoples” according to law’, to add: It is, primarily, a new way of organizing the relations between the various member states, whose equality as jurisdictions it fully respects. But the member states will fail to respect their own constitutional principles if they fail to grant sufficient recognition to the rights and duties created by the EU Treaties they have entered into. They have willingly signed and ratified those treaties on the basis of reciprocity and they are bound by them in public international law.

European ‘Syspondia’  21

In his recent A Union of Peoples (2020, p. 265), he concludes that ‘Europe needs better abstract ideas’- a point that is worth taking on board, for such ideas are key to (re)assigning meaning, and inspiration too, to the interminable quest for bettering human symbiosis itself. Thesis

The preceding political forms may be taken, arguably in their own distinctive way, as expressions of ‘syspondia’s’ genus status. Reviving a collegiate ‘ethos’ for diverse ‘politeiai’ to combine into ‘politeia’, ‘syspondia’ rises to an amicable, at times even fraternal, bond internalized by members for the union’s greater good; as in ‘spondȇ’, it is a dedicated offering to the whole; a bond reminiscent of ‘Bundestreue’, which Leonardy (2003, p. 5) defines as ‘the overarching principle of federal comity or loyalty (Bundestreue) which permeates all institutional and behavioral emanations of federal practice’ or, according to Burgess (2006, p. 82, with reference to Villiers, 1995), ‘of reciprocity, mutual trust and understanding, tolerance, dignity, partnership and respect for and consent above crude majoritarian calculation’. For all its persisting state centrism, expressed, at the theory front, through some novel scholarly takes on ‘intergovernmentalism’ such as Puetter’s (2012) ‘deliberative intergovernmentalism’ and Bellamy’s (2013) ‘republican intergovernmentalism’, the present-­day EU still represents and, crucially, symbolizes much more than an extension of self-­defined interests managed by states alone. As Nicolaidis (2004, p. 82–83) put it: ‘It is more than a particularly strong version of a confederation of sovereign states, in that its people are connected politically directly and not only through the bargains of their leaders’. From Avbelj’s (1994, p. 359) optic, which is also relevant to the EU: The union is explicitly a non-­statist entity, but by not being placed in the constitutional paradigm, which has traditionally been closely linked to the state, it avoids both the risk and the charge of re-­introducing statism through the backdoor of constitutionalism. In this way, the concept of union opens up the way for innovation both in theoretical framing and in practical guidance of the political phenomena beyond the state. In an attempt to make sense of the larger aggregate developed thus far, ‘syspondia’ projects an image of the whole resting on a persisting quality of being a ‘politeia’ out of many existing ones; a general system of intensive shared rule on a broad range of policy domains among units whose collective existence escapes the classical forms of political authority. This is not a

22  Dimitris N. Chryssochoou

post-­statist reading of the current state of union, but a view of states adjusting to pressing realities by reaping the benefits of sharing. Thus, European ‘syspondia’ is a type of regional ordering that signals a departure from a collection of merely or primarily horizontally coordinated democratic polities and closer to a (plat)form being constituted on the basis of codetermination; the EU perhaps being the most innovative instance of ‘syspondia’ in the history of unions. Notwithstanding plausible claims to sovereignty’s continuing relevance, it is now all the more contested, dispersed, divisible and shared. A structured plurality of distinct but constituent units, the EU defies resort to old dichotomies, hierarchies and forms of unity. As Weiler (2003, p. 20–21) notes with reference to the principle of ‘constitutional tolerance’: It is a remarkable insistence of civic tolerance to accept being bound by precepts articulated not by “my people” but by a community composed of distinct political communities: a people, if you wish, of others I compromise my self-­determination in this fashion as an expression of this kind of internal – towards myself – and external – towards others – tolerance. From Walker’s (2003, p. 4) ‘constitutional pluralism’ in what he sees as an era of ‘late sovereignty’: states are no longer the sole locus of constitutional authority, but are now joined by other sites, or putative sites of constitutional authority […] the only viable and the only acceptable ethic of political responsibility for the new configuration is one which is premised upon mutual recognition and interpenetration of constitutional sites located at different levels. This configuration, it is argued, should lead neither to a new unity or fixed hierarchy of constitutional authority nor, at the other extreme, to a fragmentation of authority such that the sense is lost of there being distinctive units of constitutional authority at least some of which possess a broad influence of over questions of social, political and economic organization. ‘Syspondia’ is the basic principle around which a form of unity is being built on a cooperative bond and thus culture, not only as the expression of an advanced institutional partnership but also of higher levels of symbiosis among coevolving – ‘syspondous’ – partners. It poses a challenge to theory, resembling Althusius’s (1995 [1603/1614]) pre-­Westphalian commonwealth design and a ‘post-­sovereign’ quality, in that authority-­sharing takes place in a larger ‘politeia’. Its relevance to Althusius’s construct is apparent due to its emphasis on sharing among ‘symbiotes’ (Althusius, 1995 [1603/1614]: 19), and in that, interactions among the latter, and between them and the common institutions, result in a structured ordering that guarantees their access

European ‘Syspondia’  23

to sharing. All the above reveal a way of yielding insights into an abstractly conceived but possible end state of integration. After all, as Taylor (2008, p. 92) put it, if the end of integration could not be substantially defined in empirical terms, it might still be possible to identify dynamic processes in the present system. Indeed, given the concern with transformation, it may not be possible to identify the end situation in detail, as it cannot be known. But there has to be a general notion of the end, although the dependent variable may be speculative or unknown. The constitution of ‘syspondia’, the bonds being forged among partners that sustain the larger aggregate, rests on the synchronic interplay of ‘politeia/ politeiai’, a call to revisiting the conditions and conventions that alter the self-­ contained ability of states to determine their future by acting alone. Sovereignty has thus taken on new shapes and has come to serve increasingly complex functions that were once at the core of their own arenas. It is a trajectory drawn both from the experience of unions (and its theorizing) and from novel transmutations of political authority. Thus emerges a ‘syspondia’ of increasingly coevolving ‘politeiai’ as an indication of what the present state of union looks like and what it may hold for the near future; it may well be only an indication, but one which may equally well provoke the interest of future theorists to connect a view of the whole with an idea of a plausible end state. Epilogue

‘Syspondia’, a collegiate ordering among ‘politeiai’ investing in each other’s embrace of their collective existence, projects an image of an ordered association coevolving with its also coevolving component orders. It makes us think of a greater ‘koinon’ which invites the parts to a common life, without detaching them from their own, sharing being the normative referent of the union’s own ‘soul’: a catalyst for meeting the demands of sharing. ‘Syspondia’ is hence about a theory of what a theory of union can reveal about members’ wilful disposition to combine into ‘politeia’. It all comes down, then, to how Europeans value their own ‘politeiai’ in relation to that shaped by all. The language associated with the notion of ‘syspondia’ invites an answer by being told how to construct such a fascinating late-­modern political aggregate. References ‘Athens Declaration adopted by the Heads of State participating in the 15th Arraiolos Meeting, Athens, (11 October 2019). at www.president.ie/en/media-­library/news-­ releases/athens-­declaration (accessed on 20 May 2021).

24  Dimitris N. Chryssochoou

Althusius, J. (1995) [1603, 2nd ed., 1614]. Politica: Abridged Translation of Politics Methodically Set Forth and Illustrated with Sacred and Profane Examples, edited and translated by F. S. Carney. Indianapolis, IN: Liberty Fund. Aroney, N. (2002). ‘“A Commonwealth of Commonwealths”: Late Nineteenth-­ Century Conceptions of Federalism and Their Impact on Australian Federation, 1890-­1901’, The Journal of Legal History, 23(3). Aroney, N. (2009). The constitution of a federal commonwealth: the making and meaning of the Australian constitution. Cambridge: Cambridge University Press. Avbelj, M. (1994). ‘Theorizing Sovereignty and European Integration’, Ratio Juris, 27(3). Balbi, A. (1838). Geography, Vol. I (in Greek) [Abrégé de géographie rédigé sur un nouveau plan. Paris: J. Renouard, 1833], translated by K. M. Koumas, Vienna: A. Benko. Beck, H. and Funke, P. (2015). ‘An introduction to federalism in Greek antiquity’, in Η. Beck and P. Funke (eds) Federalism in Greek antiquity. Cambridge: Cambridge University Press. Bellamy, R. (1999). Liberalism and Pluralism: Towards a Politics of Compromise. London and New York: Routledge Bellamy, R. (2013). ‘An Ever Closer Union Among the Peoples of Europe: Republican Intergovernmentalism and Democratic Representation within the EU’, in R. Bellamy and S. Kröger (eds). Special Issue: ‘Representation and Democracy in the EU: Does one come at the expense of the other?’, Journal of European Integration, 35(5). Bryce, J. (1888). The American Commonwealth. London: Macmillan. Burgess, M. (2006). Comparative Federalism: Theory and Practice. London and New York: Routledge. BVerfG, 2 BvE 2/08 (30 June 2009), par. 229C. English translation at www.­ bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2009/06/ es20090630_2bve000208en.html (accessed on 1 December 2021). Castiglione, D. (2009). ‘Political identity in a community of strangers’, in J. T. Checkel and P. J. Katzenstein (eds) European Identity. Cambridge: Cambridge University Press. Chryssochoou, D. N. (1994). ‘Democracy and Symbiosis in the European Union: Towards a Confederal Consociation?’, West European Politics, 17(4), 1–14. Chryssochoou, D. N. (1998). Democracy in the European Union. London and New York: I. B. Tauris. Chryssochoou, D. N. (2009). Theorizing European Integration. 2nd ed. London and New York: Routledge. Cohen, C. (1971). Democracy. Athens, GA: The Georgia University Press. De Villiers, B. (1995). ‘Bundestreue: The Soul of an Intergovernmental Partnership’, Occasional Papers, Konrad Adenauer Stiftung, Johannesburg: RSA, March. Doukellis, P. (2004). ‘Introduction to the Greek Edition’, in L. Aigner-­Foresti et al. Federations in the Ancient World: Ideas and Practice (in Greek). Athens: Ant. N. Sakkoulas. Duchacek, D. (1970). Comparative Federalism: The Territorial Dimension of Politics. London: Holt, Reinehart and Winston. Eatwell, R. and Goodwin, M. (2018). National Populism: The Revolt Against Liberal Democracy. London: Pelican. Elazar, D. J. et al. (1994). Federal Systems of the World: A Handbook of Federal, Confederal and Autonomy Arrangements. 2nd ed. London: Longman Current Affairs.

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Eleftheriadis, P. (2012). ‘Federalism and Jurisdiction’, in E. Cloots et al. (eds) Federalism in the European Union, Oxford: Hart Publishing. Eleftheriadis, P. (2020). A Union of Peoples: Europe as a Community of Principle. Oxford: Oxford University Press. Figueira, T. and Jensen, S. R. (2013). ‘Governing Interstate Alliances’ in H. Beck (ed.) A Companion to Ancient Greek Government. Chichester: Wiley-­Blackwell. Forrest, G. W. (2000). ‘The pre-­polis polis’, in R. Brock and S. Hodkinson (eds) Alternatives to Athens: Varieties of Political Organization and Community in Ancient Greece. Oxford: Oxford University Press. Forsyth, M. (1981). Unions of States: The Theory and Practice of Confederations. Leicester: Leicester University Press. Forsyth, M. (1995a). ‘Towards a New Concept of Confederation’, in Conference Proceedings, The Modern Concept of Confederation. European Commission for Democracy Through Law, Council of Europe. Forsyth, M. (1995b). ‘Political Science, Federalism and Europe’, Discussion Papers in Federal Studies, No. FS95/2, University of Leicester. Gionannini, A. (1971). Untersuchungen über die Natur und die Anfänge der bundesstaatlichen Sympolitie in Griechenland (Hypomnemata, Heft 33). Göttingen: Vandenhoeck und Rupprecht. Glasgow, G. (2017). ‘Letter from Berlin: German Shame and the Rise of the Far Right,’ The Independent, 27 September. Grimm, D. (2015). ‘Sovereignty in the European Union’, in J. van der Walt and J. Ellsworth (eds) Constitutional Sovereignty and Sοcial Solidarity in Europe. Baden-­ Baden: Nomos, 39–54. Groom, A. J. R. (1990). ‘The setting in world society’, in A. J. R. Groom and P. Taylor (eds), Frameworks for International Co-­operation, London: Pinter. Heywood, A. (2004). Political Theory. 2nd ed. Basingstoke: Palgrave. Hix, S. (2007). ‘The EU as a Polity (I)’, in Κ. Ε. Jørgensen et al. (eds), Handbook of European Union Politics. London: Sage. Jachtenfuchs, M. (2007). ‘The EU as a Polity (II)’, in Κ. Ε. Jørgensen et al. (eds), Handbook of European Union Politics. London: Sage. Kinnas, J. and Groom, A. J. R. (1990). ‘Association’, in A. J. R. Groom and P. Taylor (eds) Frameworks for International Co-­operation. London: Pinter. Kirchhof, P. (1992). ‘Der deutsche Staat im Prozeß der europäischen Integration’, in Isensee, J. and Kirchhof, P. (eds)Handbuch des Staatsrechts der Bundesrepublik Deutschland, Vol. VII: Normativität und Schutz der Verfassung – Internationale Beziehungen. Heidelberg: C. F. Müller. Kirchhof, P. (1999). ‘The Balance of Powers Between National and European Institutions’, European Law Journal, 5(3), 225–242. Krasner, S. D. (1999). Sovereignty: Organized Hypocrisy. Princeton, NJ: Princeton University Press. Krasner, S. D. (2004). ‘The Hole in the Whole: Sovereignty, Shared Sovereignty and International Law’, Michigan Journal of International Law, 25(4). Lavdas, K. A. and Chryssochoou, D. N. (2007). ‘A Republic of Europeans: Civic Unity in Polycultural Diversity’, in L. Bekemans et al. (eds) Intercultural Dialogue and Citizenship: Translating Values into Actions. Venice: Marsilio, 207–227. Lavdas, K. A. and Chryssochoou, D. N. (2011). A Republic of Europeans: Civic Potential in a Liberal Milieu. Cheltenham: Edward Elgar.

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Leibfried, S. et al. (2009). ‘Through the Funhouse Looking Glass: Europe’s Ship of States’, in Special Issue: ‘The Law of the Network Society: A Tribute to Karl-­Heinz Ladeur’, German Law Journal, 10(4), 311–334. Leonardy, U. (2003). ‘Mechanisms of Intergovernmental Relations (IGR) and their Management Centres in the German Federal System’, presented at the Workshop on ‘Mechanisms of Intergovernmental Relations: International Experiences and Challenges for Brazil’, Forum of Fedrations, Brazilia, 17–18 September, at www. forumfed.org/library/mechanisms-­of-­intergovernmentalrelations-­igr-­andtheir-­ management-­centres-­in-­the-­german-­federal-­system/ accessed on (28 May 2021). Liddell, H. G. et al. (1996).Greek-­English Lexicon (New Supplement). Oxford: Oxford University Press. Lister, F. K. (1996). The European Union, the United Nations and the Revival of Confederal Governance. Westport, CT: Greenwood Press. Lister, F. K. (1999). The Early Security Confederations: From the Ancient Greeks to the United Colonies of New England. Westport, CO: Greenwood. Mayer, F. C. and Wendel, M. (2012). ‘Multilevel Constitutionalism and Constitutional Pluralism’, in M. Avbelj and J. Komárek (eds) Constitutional Pluralism in the European Union and Beyond. Oxford: Hart Publishing. McInerney, J. (2013). ‘Polis and koinon’, in H. Beck (ed.) A Companion to Ancient Greek Government. Chichester: Wiley-­Blackwell Meiβner, B. (2012). ‘Ancient Greek Coalition Warfare: Classical and Hellenistic Examples’, Journal of Military and Strategic Studies, 14(3–4). Nicolaidis, K. (2004). ‘The New Constitution as European Democracy?’, Critical Review of International Social and Political Philosophy, 7(1), 76–93. Ola, O. (1968). ‘Confederal systems: A comparative analysis’, Civilisations, 18(2). Pavlopoulos, P. (2019). ‘Points from the introductory intervention of the President of the Republic Prokopios Pavlopoulos at the Arraiolos Group meeting’ (in Greek), at www.presidency.gr/simeia-­eisagogikis-­paremvasis-­toy-­proedroy-­tis-­dimokratias-­k-­ prokopioy-­paylopoyloy-­kata-­tin-­synantisitoy-­arraiolos-­group/ (accessed on 1 June 2021). Preuβ, U. Κ. (2015). ‘Revisiting the Rationale Behind the European Union – the Basis of European Narratives Today and Tomorrow’, in J. van der Walt J. Ellsworth (eds) Constitutional Sovereignty and Sοcial Solidarity in Europe. Baden Baden: Nomos. Puchala, D. J. (1972). ‘Of Blind Men, Elephants and International Integration’, Journal of Common Market Studies, 10(3). Puetter, U. (2012). ‘Europe’s deliberative intergovernmentalism: the role of the Council and European Council in EU economic governance’, Journal of European Public Policy, 19(2). Rosamond, B. (2000). Theories of European integration, Basingstoke: Palgrave Macmillan. Ruta, M. (2010). ‘Lobbying and (de)centralization’, Public Choice, 144(1/2). Sbragia, A. M. (1992). ‘Thinking About the European Future: The Uses of Comparison’, in A. M. Sbragia (ed.) Euro-­Politics: Institutions and Policymaking in the ‘New’ European Community. Washington, DC: The Brookings Institution. Singer, J. D. (1960). ‘Theorizing about theory in international politics’, Journal of Conflict Resolution, (4)4. Stoker, G. (1995). ‘Introduction’, in D. Marsh and G. Stoker (eds), Theory and Method in Political Science, Basingstoke: Macmillan.

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Strabo. (1927). Geography, Volume IV: Books 8-­9, Loeb Classical Library No. 196, translated by H. L. Jones. Cambridge, MA: Harvard University Press. Taylor, P. (1978). ‘Confederalism: The Case of the European Communities’, in P. Taylor and A. J. R. Groom (eds) International Organization: A Conceptual Approach. London: Pinter. Taylor, P. (1993). International Organization in the Modern World: The Regional and the Global Process. London: Pinter. Taylor, P. (1996). The European Union in the 1990s. Oxford: Oxford University Press. Taylor, P. (2008). The End of European Integration: Anti-­Europeanism Examined. London and New York: Routledge. Tombeur, H. (January 2013). ‘No. 20’, in L. Klinkers and H. Tombeur (guest author, F. Jadoul) (2012–2013) European Federalist Papers: Facts and arguments for a European federation, at www.europeanfederalistpapers.eu Tsatsos, D. T. (2009). The European Sympolity: Towards a New Democratic Discourse, translated by N. Chrysoloras. Brussels: Bruylant. Unger, R. M. (1975). Knowledge and Politics. New York, NY: The Free Press. Walbank, F. W. (1976-­ 77). ‘Were There Greek Federal States?’, Scripta Classica Israelica, 3. Walker, N. (2003). ‘Late Sovereignty in the European Union’, in N. Walker (ed.) Sovereignty in Transition. Oxford: Heart Publishing. Watts, R. L. (1999). Comparing Federal Systems 2nd ed. Montreal and Kingston: McGill-­Queens University Press. Weale, A. (2005). Democratic citizenship and the European Union. Manchester and New York: Manchester University Press. Weiler, J. H. H. (2003). ‘In defence of the status quo: Europe’s constitutional Sonderweg’, in J. H. H. Weiler and M. Wind (eds) European Constitutionalism beyond the State. Cambridge: Cambridge University Press, 2003. York, D. (1919). Leagues of Nations, Ancient, Medieval and Modern. London: Swarthmore Press.

2 COOPERATIVE FEDERALISM IN THE UNITED STATES National, State and Local Dynamics John Kincaid

Introduction

The United States has a constitutionally dual, rather than integrated, federal system. The federal (i.e., national) government operates under the U.S. Constitution of 1788; each state operates under its own constitution written and adopted independently by its citizens (with the Massachusetts Constitution of 1780 being the world’s oldest written constitution still operating). Neither order of government is fiscally dependent on the other; each is sovereign within its sphere of constitutional authority; and there is no constitutional expectation that states implement framework legislation enacted by the federal government. The federal government and each state government have their own court system, including a Supreme Court with judicial-­ review authority, although the U.S. Supreme Court can void provisions of state constitutions and statutes that violate the U.S. Constitution. However, the federal government has only limited powers delegated to it by the peoples of the states. All other powers are reserved to the states or to the people as stipulated by the Tenth Amendment to the U.S. Constitution. Local governments (i.e., counties, municipalities, townships, school districts, and special districts) are creatures of their states. The U.S. Constitution does not mention local governments. Unlike most European and South Asian federations, the U.S. federal government and each of the 50 state governments have a Presidential– Congressional, rather than Parliamentary, form of government. American federalism was not created to accommodate territorially based cultural or national diversity. The U.S. federal system has never had a fiscal equalization policy; it had a weakly equalizing revenue-­ sharing program during only DOI: 10.4324/9781003461197-4

Cooperative Federalism in the United States  29

1972–1986; it has a very weak version of executive federalism; it has no formal intergovernmental councils; and it has no national planning, finance, or election commissions. Despite constitutional dualism, cooperative federalism in various forms has deep roots in American history (Elazar, 1962), partly because the two orders of government cannot operate separately in watertight compartments. Cooperation is facilitated by certain systemic factors, including the U.S. Constitution’s reservation of most domestic powers to the states, historical path dependence, public antipathy to centralization, federal tax savings, grants-­in-­aid that bridge dual federalism, the multi-­jurisdictional character of some policy matters and policy interdependence and interaction. The federal government has eight principal tools to induce state and local cooperation: (1) grants-­in-­aid, (2) deficit spending, (3) minimum national-­ standards schemes, (4) waivers of federal law, (5) compliance-­deadline extensions, (6) federal forbearance, (7) court orders and consent decrees, and (8) statutory and regulatory penalties (Kincaid, 2017). There are six important advocates of state and local cooperation with federal policies: (1) nongovernmental organizations, (2) state and local administrator lobbyists, (3) public sector union lobbyists and litigators, (4) interest-­group lobbyists, (5) citizen lawsuits and (6) congressional oversight (Kincaid,2017). Essentially, six social and political forces facilitate state and local administrative cooperation with federal policies: (1) professional norms, (2) administrator socialization, (3) public support for federal policies, (4) moral approbation, (5) territorially dispersed diversity and (6) partisan congruence and bipartisan ratchets (Kincaid, 2017). Historical Background

Intergovernmental cooperation began early. In 1790, the federal government assumed the states’ Revolutionary War debts. Alexander Hamilton advocated assumption in order to make all creditors of the federal and state governments dependent on the federal government and “avoid having the states and the federal government competing for the available sources of tax revenue” (Elkins and McKitrick, 1993, p. 118). During the nineteenth century, the states were the primary regulators of the economy because the U.S. Supreme Court allowed the states to enact laws, such as bankruptcy laws, that fell within Congress’s enumerated powers so long as Congress did not preempt (i.e., displace) state action (Sturges v. Crowninshield, 17 U.S. 122, 1819). The U.S. Supreme Court opined in 1883: Undoubtedly it was the purpose of the Constitution to establish a general government independent of … the State governments—one which could

30  John Kincaid

enforce its own laws through its own officers and tribunals; … That government can create all the officers and tribunals required for the execution of its powers … Yet from the time of its establishment that government has been in the habit of using, with the consent of the States, their officers, tribunals, and institutions as its agents. Their use has not been deemed violative of any principle or as in any manner derogating from the sovereign authority of the federal government; but as a matter of convenience and as tending to a great saving of expense …. At different times various duties have been imposed by acts of Congress on State tribunals; they have been invested with jurisdiction in civil suits and over complaints and prosecutions for fines, penalties, and forfeitures arising under laws of the United States. And though the jurisdiction thus conferred could not be enforced against the consent of the States, yet, when its exercise was not incompatible with State duties, and the States made no objection to it, the decisions rendered by the State tribunals were upheld (United States v. Jones, 109 U.S. 513, 1883). From 1789 to the 1930s, intergovernmental cooperation was substantially reciprocal, as indicated by the above opinion’s phrase “with the consent of the states.” There were comparatively few federal intrusions into state powers and limited forms of intergovernmental cooperation, such as land grants and pork barrel projects, because the federal government exercised limited powers and accounted for less than one-­third of all own-­source government spending. Additionally, a confederated state-­ based party system enabled elected state and local officials to influence federal policy-­making in ways that substantially protected state powers. The federal role mostly backstopped the states and helped states pursue their own policy objectives. In 1803, for example, the federal government authorized a waiver from tariffs for residents of Portsmouth, New Hampshire, after a fire destroyed much of their city. Congress made more than 100 ad hoc disaster-­relief appropriations during the nineteenth century (Roberts, 2010). In 1808, Congress began appropriating $200,000 per year for state militias. Not until 1866 when Congress increased the appropriation to $400,000 did it impose a condition, namely, that states enroll 100 militiamen for each of their senators and representatives (Grodzins, 1966, p. 37). After President James Monroe (1817–1825) rejected President James Madison’s restrictive view of federal support for internal improvements, “applications for aid from the treasury,” noted President James K. Polk in 1847, “virtually to make harbours as well as improve them, clear out rivers, cut canals, and construct roads, poured into Congress in torrents, until arrested by the veto of President Jackson”(p. 82). President James Buchanan complained (1859):

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The representatives of the States and of the people, feeling a more immediate interest in obtaining money to lighten the burdens of their constituents than for the promotion of the more distant objects entrusted to the Federal Government, will naturally inclined to obtain means from the Federal Government for State purposes (p. 3076–77). The establishment of modern cash grants-­in-­aid in 1879, and later expansions of such aid during the New Deal of the 1930s, laid the foundations for today’s era of dense intergovernmental cooperation. The Social Security Act (1935) especially set a precedent by expecting states to administer federal programs in order to achieve national policy objectives rather than state objectives per se. The act gave money to the states for senior-­citizen assistance (Title I), unemployment insurance (Title III), Aid to Dependent Children (Title IV), Maternal and Child Welfare (Title V), public health services (Title VI), and aid to the blind (Title X). Such legislation embodied what became the modern doctrine of cooperative federalism that “state and local governments … do their work much better …. under firm and forward-­looking national leadership” and that the “cooperation of all three levels is needed” to attain goals (Anderson, 1957, p. 244). However, the power of state and local party leaders in the confederated party system exacted substantial concessions to state and local prerogatives in most intergovernmental legislation enacted from 1879 to the mid-­1960s. Despite unprecedented expansions of federal economic regulation during the New Deal, federal laws altered but did not abolish dual federal and state banking, dual regulation of various sectors of the economy such as securities and telephony, and state regulation of insurance. Coercively Cooperative Federalism

Cooperative federalism took a coercive turn during the 1960s as the federal government increasingly formulated policies independently of state and local government officials and promulgated policies through unprecedented increases in conditions (i.e., regulations) attached to federal grants-­in-­aid, mandates imposed on state and local governments, preemptions of state powers, and court rulings and orders aimed at reforming state and local governments (Kincaid, 1990; U.S. Advisory Commission, 1994). Under coercive federalism (a) the federal government is the dominant policymaker, (b) the federal government is able to assert its policy will unilaterally over the state and local governments, (c) elected state and local officials are more often lobbyists than partners in intergovernmental policy-­making, (d) interactions

32  John Kincaid

between federal officials and elected state and local officials are more often consultations than negotiations, (e) there are few constitutional limits on the exercise of federal power, (f) cooperative policy-­ making, when it occurs, is most often due to the influence of interest groups operating outside the intergovernmental system than to state and local officials operating inside the intergovernmental system, and (g) all important arenas of state and local decision-­making are infused with federal rules (Kincaid, 2011, p. 13). Many forces contributed to this change, including social movements demanding federal intervention into state and local affairs to protect rights, especially those of African Americans, and to remedy negative externalities, such as pollution; the spread of national television news reporting; the collapse of the confederated party system induced partly by the U.S. Supreme Court’s “one, person, one vote” legislative redistricting rulings (Wesberry v. Sanders, 376 U.S. 1, 1964); Reynolds v. Sims, 377 U.S. 533, 1964) that demolished the parties’ county foundations; party reforms after the 1968 elections requiring primary elections for candidate nominations; the U.S. Supreme Court’s selective application of the U.S. Bill of Rights to state and local governments; the rise of public–employee unions; the rise of institutional lobbying in Washington, D.C. (Jensen, 2016); and the decline of the South as a states’ rights force in Congress and national politics (Kincaid, 1993). Before the 1960s, cooperative federalism had two key facets: (1) participation by elected state and local government officials in formulating federal policies affecting states through their congressional delegations and direct lobbying and (2) cooperation among federal, state, and local officials in implementing federal intergovernmental policies in ways that accommodated federal and state objectives. This conception recognized “that governments must cooperate, that is, work and function together”(Elazar, 1991, p. 69). “National supervision” of intergovernmental programs was “largely a process of mutual accommodation” (Grodzins, 1960, p. 266) in a mildly chaotic, noncentralized system that lacked a command center and gave citizens multiple access points. Even the U.S. Supreme Court allowed far more federal-­state collaboration than it blocked (Grodzins, 1960, p. 270) from 1800 until 1937 when the court ceased employing the Constitution as a barrier to centralization. To facilitate coercive cooperation and compensate for the loss of voice by state and local governments, the number of federal grants-­in-­aid was increased from 132 in 1960 to 385 in 1968, 492 in 1978, and 1,274 in 2018 (Congressional Research Service, 2019). Federal aid in real dollars increased 145 percent from $51.5 billion in 1960 to $126.3 billion in 1969 and by 90 percent from $141.8 billion in 1970 to $270.0 billion in 1979, and then $899.8 in 2021 (U.S. Office of Management and Budget, 2021). At the same

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time, conditions of aid, mandates, preemptions, and federal court orders experienced unprecedented increases (U.S. Advisory Commission, 1984, 1992). Consequently, state and local governments took on the mantle of administrative arms of the federal government. “Many state workers function as de facto federal bureaucrats” (Dilulio, 2016, p. 535). Systematic Factors in State and Local Government Administrative Cooperation with the Federal Government

At least seven features of the federal system helped facilitate institutionalization of intergovernmental cooperation. First, the Constitution’s reservation of most domestic powers to the states virtually requires them to be the principal implementers of federal domestic policies. Having had almost sole responsibility for domestic governance for some 175 years, they had experience in most of the policy fields facing federal intervention during the twentieth century. The federal government’s path of least resistance was to recruit state and local governments as administrative agents. From the start, Alexander Hamilton saw the need to cooperate with the states to effectuate certain federal policies (Kincaid, 2014). Being constitutionally unable to commandeer the states, the federal government resorted to grants-­in-­aid. In the regulatory sphere, the federal government often encourages states to enact laws substantially equivalent to federal laws, such as fair housing laws, and then devolves authority for them to enforce federal objectives through state laws (Lamb & Wilk, 2010). These arrangements often allow federal officials to blame state and local officials for policy failures. Second, historical path dependence arising from some 175 years of cooperation created a strong inertia for sustaining state and local cooperation in administering modern federal programs. Most state and local officials had long welcomed federal aid, and they could be eased into the new federalism by operationalizing the redefinition of cooperation incrementally over several decades. Third, traditional American antipathy to centralization contributed to the willingness of federal officials to rely on state and local government administration as a politically palatable alternative to constructing a federal administrative leviathan or contracting out functions to the private sector. State and local governments already were democratically legitimate service-­ delivery venues. Thus, despite the enormous expansion of federal policy-­ making since the mid-­1960s, the federal government has only 537 elected officials while state and local governments have more than 500,000. There are 2.1 million full-­and part-­time federal civilian employees compared to 5.5 million state employees and 14.2 million local government employees.

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Fourth, the federal government avoided levying the direct taxes needed to build a vast administration. Also, construction of a huge federal administration would have required perhaps politically prohibitive increases in direct taxes that would have placed considerable competitive pressure on state and local tax bases. From 1789 to 1913, federal cash assistance to states came mostly from indirect revenue, such as customs duties and public land sales, the weights of which were not felt directly by citizens. Enactment of the federal income tax in 1913 was the first sustained direct taxation of residents but, except for the World War II era, the burden has been comparatively light for most people because upper-­income residents have paid most of the tax. In 2017, the top 50 percent of all taxpayers paid 97 percent of all individual income taxes; the bottom 50 percent paid 3 percent (Tax Foundation, 2021). Coercively cooperative federalism also is partly funded through deficit spending, which is not felt directly by taxpayers. The unprecedented federal deficits of 56 of the past 61 years are partly a price of the new federalism. Funneling federal domestic policy through grants-­in-­aid having requirements that state and local governments match federal money with certain percentages of their own money was politically and fiscally more cost-­effective for federal officials. State and local implementation of federal policies enables Congress to offload some costs onto state and local governments through unfunded and underfunded mandates, the fiscal illusions of which benefit federal officials. Under coercively cooperative federalism, federal courts require compliance with their orders regardless of cost and even require state and local governments to levy taxes and enjoin state laws blocking such levies. The U.S. Supreme Court sees such cooperative federalism as compatible with state integrity: “Authorizing and directing local government institutions to devise and implement remedies not only protects the function of these institutions but, to the extent possible, also places the responsibility for solutions to the problems of [race] segregation upon those themselves who have created the problem” (Missouri v. Jenkins, 495 U.S. 52, 1990). Fifth, grants-­in-­aid help overcome a key constitutional feature of dual federalism, namely, the lack of federal authority to enter many domestic policy fields directly. Grants enticed states to invite federal participation in exclusive or predominantly state domains. Once grants became legitimized and fiscally consequential, they also became vehicles for Congress to mandate outcomes in state policy domains outside of its constitutional ambit. Sixth, the multi-­jurisdictional nature of some public issues, such as environmental protection, requires joint federal, state, and local implementation, although not necessarily coerced cooperation. The Delaware River Basin Commission, for example, is an interstate compact in which the federal

Cooperative Federalism in the United States  35

government is a partner. The commission was established in 1961 before the enactments of today’s cooperative–federalism environmental regulatory programs such as the Clean Water Act of 1972. Seventh, joint federal, state, and local action is often required by policy interdependence and interaction, such as crossovers among infrastructure, historic preservation, environmental protection, and civil rights policies. Policy advocates have long emphasized a need to break down policy silos. However, the United States has no constitutional or statutory interstate council or intergovernmental body charged with overseeing or coordinating intergovernmental relations. An Advisory Commission on Intergovernmental Relations consisting of federal, state, and local officials and private citizens was established in 1959 to make recommendations to improve cooperation, but Congress defunded the Commission in 1996. Federal Tools to Stimulate State and Local Administrative Cooperation

The federal government has about eight tools to induce state and local cooperation. 1 Federal-­Aid Carrots and Sticks The carrots and sticks of federal aid stimulate cooperation because federal revenue has accounted for variable but often sizeable portions of state and local budgets since the late 1960s. Despite numerous conditions attached to federal aid, state and local governments embrace most grants-­in-­aid. State and local officials welcome most federal money because it allows increased spending without appearing to extract much revenue from their voters. The flypaper effect, moreover, means that federal grants increase the level of state or local recipients’ public spending more than would an equivalent increase in each recipient’s own income (Courant, Gramlich & Rubinfeld, 1969). It is possible that grants also push tax increases onto future officials. Future state taxes “rise by between 31 and 40 cents for every dollar in federal grants states received today, while local taxes will rise by between 23 and 46 cents for every dollar in federal (or state) grants received today” (Sobel & Crowley, 2014, p. 167). Additionally, the salaries of many state and local government employees and resources for the programs they administer rest partly on direct or indirect federal monies. From 1978 to 2004, the proportion of state agencies receiving and managing federal aid ranged from 69 percent in 1988 to 79 percent in 2004 (Brudney & Wright, 2010). Even if only a small percent of an employee’s salary or program resources comes from federal aid, loss of that portion can result in a job loss or program cutback.

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The conditions attached to federal aid require state and local government compliance. The U.S. Supreme Court has only once found an aid condition unconstitutionally coercive (National Federation of Independent Business v. Sebelius, 567 U.S. 519, 2012) and is unlikely to do so again. Ordinarily, conditions in ongoing programs, including block grants, are ratcheted up incrementally in an almost bait-­and-­switch manner. 2 Fiscal Illusions of Deficit Spending The era of coercively cooperative federalism has been marked by continual deficit spending since 1969, except for fiscal years 1998–2001. Just as grants create the illusion of free money for state and local taxpayers, federal deficit spending encourages state and local officials to shift costs to the federal government because it appears to be costless and because state and local officials face comparatively hard budget constraints in the forms of state constitutional or statutory tax, expenditure, and borrowing limits. Deficit spending can also enhance public support for federal policies because current voters are not asked to pay for those policies. 3 Minimum National-­Standards Schemes Partial preemption greases cooperation by creating room for state and local governments to exceed federal regulatory floors in some policy fields (e.g., many federal environmental statutes). Likewise, state legislatures and courts can establish individual-­rights standards that are higher or stricter than those recognized under the U.S. Bill of Rights (Kincaid, 1988). These schemes are coercively cooperative, though, because state and local governments can only exceed federal floors. This safety valve helps sustain the system by allowing states desiring stricter standards to exceed the federal floor rather than contesting the system. Partial preemption also helps Congress to expand coercively cooperative programs by ensuring proponents or opponents of no preemption or occupy-­the-­field preemption that state and local governments will have space for independent action. Further, these schemes do not prevent Congress or the U.S. Supreme Court from later increasing federal minimum standards. 4 Waivers of Federal Law Waivers of provisions of federal law are a more recent tool. Waivers have been occasioned by presidential desires to circumvent congressional opposition and by program complexity, public pressure to allow more state discretion to improve outcomes, skyrocketing costs in some programs, such as Medicaid (government health insurance for the poor), and partisan polarization that makes it difficult for state and local officials to obtain more discretion, such as block grants, through Congress (Kincaid, 2001). Waivers issued by executive agencies allow individual states to depart from program rules so as to experiment with ways to improve achievement of federal program objectives. Waivers are not

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issued for reasons of federalism; they are issued for reasons of program flexibility and development. State officials must apply for each waiver, and federal agencies do not grant waivers unless they further the incumbent president’s objectives. Although waivers permit only federally sanctioned discretion and, arguably, violate the rule of law (Frohnen, 2016), they relieve pressure for restive states to buck the system. For example, 33 percent of federal funding for Medicaid, which accounts for more than half of all federal aid to state and local governments, supported states’ waiver programs in 2015. 5 Extensions of Compliance Deadlines Federal agencies often extend compliance deadlines for all or some state and local governments, again relieving pressure in the system. Because many states resisted the U.S. REAL ID Act of 2005 (which requires states to issue driver’s licenses that comply with federal security measures), the U.S. Department of Homeland Security (DHS) extended compliance deadlines several times, with full enforcement now set for May 2023. All 50 states did not comply until 2020. The extensions, though, did not stem solely from federal–agency cooperation; they also reflected President Barack Obama’s dislike of REAL ID and resistance by both conservative and liberal interest groups concerned about government surveillance and citizen privacy. In the absence of these allies, DHS would likely have required state compliance earlier than 2020. 6 Federal Forbearance Pressure against coercively cooperative federalism is also mitigated by the states’ abilities to enact some policies that deviate from federal standards. States opposed to federal abortion policies have found novel ways to restrict abortion through regulation. The U.S. Supreme Court has struck down some state regulations but also upheld many, while retaining ultimate authority over what is permissible. In 2003, Massachusetts became the first state to legalize same-­sex marriage. Seventeen other states did the same before the U.S. Supreme Court mandated same-­sex marriage nationwide (Obergefell v. Hodges, 576 U.S. 644, 2015). As of late 2021, 18 states had legalized medical and recreational marijuana and another 16 had legalized medical marijuana. These state laws survive because of federal forbearance occasioned by strong public support for marijuana legalization, which crossed the 50 percent threshold in 2011. Although marijuana remains illegal under federal law, states are not obligated to enforce the federal law, and the federal government has refrained from enforcing its law in the states. 7 Federal Court Orders and Consent Decrees There has been a vast increase since the early 1950s in federal court orders and consent decrees governing state and local affairs. Following the

38  John Kincaid

massive resistance by many southern state and local governments to the federal courts in the 1950s and 1960s, state and local officials became more cooperative with judicial decisions. The federal courts stand as potential hammers to compel compliance, giving state and local officials further incentives to cooperate with federal officials. Federal court orders affect nearly all facets of state and local government. Numerous federal consent decrees of long-­standing nature, which often emanated from citizen lawsuits, also govern many aspects of administration in all states and perhaps most local governments. In 2016, for example, a federal judge accused New York City’s police department of “near systemic violations” of guidelines set forth in the Handschu consent decree of 1985 and rejected a settlement reached by the mayor and Muslim groups (Apuzzo & Goldman, 2016, p. A13). Federal officials, in seeking to foster compliance, ordinarily negotiate with state and local officials before invoking judicial intervention, but the prospect of judicial intervention helps induce state and local cooperation. 8 Federal Statutory and Regulatory Penalties Some cooperative federalism statutes contain civil or criminal penalties aimed at uncooperative state and local officials. Many federal statutes also enable citizens to sue state and local officials for insufficient or discriminatory compliance with federal laws, and many provide for withdrawal of federal funds. Although federal officials usually invoke penalties as a last resort, the possibility can be persuasive. An illustration of the fear of penalties and adverse publicity accompanying penalties could be seen when, with more than 100 institutions under federal investigation, many public and private higher-­education administrators were in a panic to comply with federal Title IX gender-­discrimination rules issued in 2011 in a 19-­page “Dear colleague” letter and other communications from the U.S. Department of Education on how to adjudicate sexual-­ assault accusations on campuses even though letters of guidance lack the force of law. Federal agencies have increasingly used guidance mechanisms not subject to the notice-­ and-­ comment rules of the Federal Administrative Procedure Act. Advocates of State and Local Administrative Cooperation

At least six categories of entities function as advocates of cooperative federalism. 1 Nongovernmental Organizations Thousands of nongovernmental organizations participate in administering most cooperative intergovernmental programs, and their employees

Cooperative Federalism in the United States  39

depend on federal funds often delivered to them via state and local treasuries. Some nongovernmental organizations also have nongovernmental income, but many rely substantially on government funds. This kind of collaboration was developed in the early nineteenth century and increased after the Civil War (1861–1865). A portion of New York City’s Madison Square occupied by a U.S. arsenal was given by the federal government to the Society for the Prevention of Pauperism and Crime in 1824 to construct the New York House of Refuge for juvenile delinquents. The first National Asylum for Disabled Volunteer Soldiers established in Milwaukee in 1867 was co-­funded by the federal government and the Lady Managers of the Home Society, which also managed the asylum. However, President Lyndon B. Johnson’s ‘creative federalism’ of the mid-­1960s vastly expanded the roles of nongovernmental organizations through public–private partnerships and direct federal aid, partly out of mistrust of state and local governments and to circumvent state capitals and city halls. Such nongovernmental organizations – both nonprofits and for-­profits –proliferate around every intergovernmental program and also ally nationwide to lobby for more federal money and regulations to expand and maintain their programs. 2 Administrator Lobbyists State and local administrators frequently advocate expansive public policy-­making and higher spending in their field and, thus, often welcome federal intervention. For example, the 1916 Federal Aid Road Act consisted almost entirely of language drafted by the American Association of State Highway Officials. As a condition of aid, states had to establish a dedicated highway agency staffed by professional engineers. Such advocacy is sometimes used to circumvent or undercut elected state and local officials opposed to increased federal funding or policy-­making. State and local environmental officials, for example, tend to welcome federal rules that set stricter environmental standards and require more state and local spending on environmental protection. It is not uncommon for state and local bureaucrats to lobby for federal policies that are opposed by state and local elected officials who can be punished at the ballot box for implementing unpopular federal policies or increasing taxes in order to pay for state or local implementation of those policies. Even in the 1940s, Albert Deutsch (1948) noted that state mental-­hospital administrators welcomed him to photograph and expose institutional conditions so as to induce elected officials to increase state and federal funding and regulation. The State Administrators Project found over the decades that federal aid and regulations promoted “constant, consequential, and pervasive” state agency autonomy from gubernatorial and legislative oversight (Brudney & Wright, 2010, p. 31).

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3 Public Sector Union Lobbyists and Litigators Public–employee unions, which blossomed in the 1960s, often advocate increased federal policy-­making and state and local cooperation with federal policy objectives that benefit their members. Federal, state, and local public employee organizations have similar goals; they support federal program implementation; they sometimes oppose the policy preferences of their elected employers; and they serve as additional forums for intergovernmental communication and cooperation. State and local public employee organizations usually welcome increased federal money and regulation. The American Federation of State, County and Municipal Employees fosters unionization, lobbies the federal government for favorable policies and is one of the country’s biggest financial contributors to political campaigns. The National Education Association and American Federation of Teachers are among the most influential lobbyists in states and Washington, D.C. State and local public employees trigger considerable federalism litigation, including some of the U.S. Supreme Court’s most important federalism rulings, such as the pro-­state National League of Cities v. Usery (426 U.S. 833, 1976) and Garcia v. San Antonio Metropolitan Transit Authority (469 U.S. 528, 1985), which overturned Usery. In these cases, organizations of elected state and local officials opposed application of the U.S. Fair Labor Standards Act to state and local public employees. 4 Interest-­Group Lobbyists After achieving a federal intergovernmental policy objective, national, state, and local interest groups pressure state and local governments to cooperate in implementing that objective. There has been tremendous growth in interest-­group activity within the states since the late 1960s. One cause of growth has been the need for interest groups to induce cooperative state and local compliance with national policy objectives supported by interest groups. Policy advocates do not hesitate to lobby, protest, and sue state and local governments for noncompliance. In 2014– 2020, for example, citizen protests in numerous cities of police shootings of black men triggered federal interventions to secure local police compliance with federal policing rules. 5 Citizen Lawsuits Citizen lawsuits pursuant to federal statutes – such as Section 1983 of the Civil Rights Act (1871), environmental laws, the Americans with Disabilities Act (1990), and the Fair Housing Amendments Act (1988) – are a regular feature of state and local governance and a common tool for inducing or sustaining cooperative state and local government implementation of federal policies.

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6 Congressional Oversight Members of Congress encourage state and local cooperation with federal program objectives that enhance their re-­election chances. Congressional interference with federal bureaucrats is another stimulus for cooperative federalism. “Administrative contacts [are] voluminous, and the whole process of interaction [is] lubricated … by constituent-­conscious members of Congress” (Grodzins, 1960, p. 270). Congressional casework still influences the intergovernmental attitudes and actions of federal administrators, although interest groups play bigger roles in federal programs than they did in the early 1960s. Consequently, the proportion of congressional casework conducted on behalf of state and local governments as opposed to interest groups is smaller today. Although pork barrel spending dates back to the nation’s founding, the rise of contemporary earmarking by members of Congress produces outcomes that often ignore or conflict with the preferences of state and local officials. As a Colorado transportation official remarked: “Why do we spend 18 months at public hearings, meetings and planning sessions to put together our statewide plan if Congress is going to earmark projects that displace our priorities?” (Mullins, 2006, p. A10). Grodzins’ evidence dealt overwhelmingly with place-­focused programs, such as highways and other infrastructure (e.g., airport development), agriculture, and education. Since then, the federal government has enacted massive social welfare programs, where intergovernmental spending has skyrocketed. As a proportion of all federal aids to state and local governments, social welfare aid increased from 35 percent in 1960 to 75 percent in 2017 and then dropped to 68 percent in 2021. In constant dollars, intergovernmental social welfare aid increased by 3,811 percent from 1960 to 2021, while aid for programs that preoccupied Grodzins increased by only 606 percent. Hence, the policy content of the intergovernmental fiscal landscape is vastly different from that in 1960. The dominance of social welfare programs has not only created millions of direct beneficiaries of coercively cooperative federalism but also generated fears among many that decentralization would induce a race to the bottom of welfare provision among the states. Social and Political Facilitators of State and Local Administrative Cooperation

At least six social and political factors facilitate cooperative state and local implementation of federal policies. 1 Professional Norms Due to similar civil-­service rules and shared professional norms, most federal, state and local administrators focus on cooperative task execution

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under existing rules and budgets. Additionally, federal, state, and local administrators within policy fields often share the same education and training pedigrees and interact with each other in the same national and regional professional associations, which are usually more important to them than political party affiliations. Federal, state, and local law-­enforcement officials, for example, have similar and sometimes common training and professional backgrounds, as well as a camaraderie that fosters cooperation. 2 Socialization Socialization has occurred as well. The dominance of the federal government in so many policy fields for the past 50-­some years became an unquestioned fact of administrative life, and university schools of public administration and policy convey the tenets of coercively cooperative federalism. Also, for rank-­and-­file administrators, the origins of their work dictates are less important to them than their preoccupation with how to implement those dictates. 3 Public Support Popular support for most federal social welfare and social regulation policies is an incentive for elected state and local officials to cooperate with, or at least not openly resist, most federal programs. The current refusal of some Republican governors to expand Medicaid is unusual, though not wholly exceptional, because none have seriously tried to exit Medicaid. Similarly, proposals to repeal President Obama’s highly intergovernmental Affordable Care Act are almost always accompanied by a pledge to replace it with a differently structured intergovernmental social welfare policy. 4 Moral Approbation Many federal social welfare, social regulation, and civil rights policies enjoy considerable moral approbation. A fundamental obstacle to reviving dual federalism is its historic association with racism, sexism, and other reactionary practices. This association was vividly displayed during the 2016 presidential race when Republican Donald Trump pledged to appoint U.S. Supreme Court justices who would overturn Roe v. Wade (410 U.S. 113, 1973) and restore abortion policy-­ making to the states while Democrat Hillary Clinton vowed to defend Roe and defeat abortion-­ restricting state laws. 5 Territorially Dispersed Diversity Since the fall of massive resistance to race desegregation in the South, no cultural, ethnic, religious, or linguistic region has had strong incentives to thwart intergovernmental administrative cooperation. The South lost its privileged veto position in Congress during the 1960s, and its contemporary conservatism is unreliably federalist.

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6 Partisan Congruence and Bipartisan Ratchets Contemporary cooperative federalism is bipartisan, and it began when polarization was at its lowest points in the Congress. Both parties expand federal power to advance their national policy objectives. Since the New Deal, many Republicans have been dual federalists rhetorically and cooperative federalists operationally. Federal aid increased (in real dollars) by 103 percent during the Republican President Dwight D. Eisenhower’s regime, and he signed into law, for example, the National Interstate and Defense Highways Act (1956) and National Defense Education Act (1958). Federal aid increased by 52 percent during Richard M. Nixon’s regime, and Nixon presided over major expansions of cooperative federal regulatory schemes such as the National Environmental Policy Act (1970) and Clean Water Act (1972). Federal aid declined overall by 13 percent under Republican Ronald Reagan’s regime, but Mothers Against Drunk Driving prevailed on him to sign the National Minimum Drinking Age Act. Reagan obtained 77 categorical grant consolidations into nine block grants while terminating 62 categorical grants. He also issued Executive Order 12612 in 1987, which sought to reduce regulatory interventions into state and local affairs by federal agencies. The order had little impact on federal-­agency behavior. The federal intergovernmental regulatory reach expanded under Reagan. Since Reagan, no president or presidential candidate has proposed a New Federalism or otherwise made federalism a campaign issue. Ordinarily, Democratic state and local officials support the policies of Democrats in Congress and White House, and Republican state and local officials do the same for their federal compatriots. Consequently, nationalizing policies pursued by either party often enjoy support from like-­ minded state and local officials. Otherwise, partisanship plays a minor role in intergovernmental administration. In the political arena, there may be partisan conflict over intergovernmental programs, such as Medicaid and surface transportation, and over costly mandates, such as environmental regulations, but once federal policies on these matters become law, rank-­and-­file bureaucrats have incentives to cooperate across regional and party lines on program administration. Furthermore, virtually all of the nongovernmental collaborators in policy implementation purport to be nonpartisan, and most of the nonprofit participants are legally required to be nonpartisan, although many are covertly partisan. Conclusion

The web of coercive intergovernmental cooperation woven since the mid-­ 1960s has eclipsed traditional notions of both dual federalism and reciprocally cooperative federalism, produced potent forces unfriendly to dual

44  John Kincaid

federalist restoration, and made it impossible to sort out functions into leaky watertight federal, state, and local compartments. Consequently, federalism is a nonissue in American national politics. Despite offering many proposals having significant federalism implications, no 2020 presidential aspirant mentioned a new federalism in the primary debates or general-­election campaign. References Anderson, W. (1957). The Nation and the States, Rivals or Partners? University of Minnesota Press. Apuzzo, M. and Goldman, A. (2016). Judge Rejects Settlement Over Surveillance of Muslims by New York Police Department. New York Times 31 October 31, A13. Brudney, J. L. and Wright, D. S. (2010). The “Revolt in Dullsville” Revisited: Lessons for Theory, Practice, and Research from the American State Administrators Project, 1964–2008, Public Administration Review, 70(1), 26–37. Buchanan, J. (1859). Message to the House of Representatives of the United States (24 February). In J. D. Richardson (ed.), A Compilation of the Messages and Papers of the Presidents 1789–1897. pp. 3074–3078. U.S. Government Printing Office, 1897. Congressional Research Service (2019). Federal Grants to State and Local Governments: A Historical Perspective on Contemporary Issues. CRS. Courant, P. N., Gramlich, E. M. and Rubinfeld, D. L. (1969). The stimulative effects of intergovernmental grants: Or why money sticks where it hits. In P. Mieszkowski and W. H. Oakland (Eds.), Fiscal Federalism and Grants-­in-­Aid (pp. 5–21). Urban Institute Press. Deutsch, A. (1948). The Shame of the States. Harcourt, Brace and Company. Dilulio, J. J., Jr. (2016). Against Federal “Leviathan by Proxy” and for a Bigger, Better Full-­Time Federal Workforce. Public Administration Review, 76(4), 535–537. Elazar, D. J. (1962). The American Partnership: Intergovernmental Cooperation in the Nineteenth Century United States. University of Chicago Press. Elazar, D. J. (1991). Cooperative Federalism. In D. A. Kenyon and J. Kincaid (Eds.), Competition Among States and Local Governments: Efficiency and Equity in American Federalism (pp. 65–86). Urban Institute Press. Elkins, S. and McKitrick, E. (1993). The Age of Federalism. Oxford University Press. Frohnen, B. P. (2016). Presidential Waivers, Federalism, and the Rule of Law. Perspectives on Political Science, 45(1), 59–67. Grodzins, M. (1960). The Federal System. In The American Assembly (Ed.), Goals for Americans (pp. 265–282). Prentice-­Hall. Grodzins, M. (1966). The American System: A New View of Government in the United States. Rand McNally. Jensen, J. M. (2016). The Governors’ Lobbyists: Federal-­State Relations Officers and Governors Associations in Washington. University of Michigan Press. Kincaid, J. (1988). State Court Protections of Individual Rights Under State Constitutions: The New Judicial Federalism. Journal of State Government, 61(September), 163–169. Kincaid, J. (1990). From Cooperative to Coercive Federalism. Annals of the American Academy of Political and Social Science, 509(May), 139–152.

Cooperative Federalism in the United States  45

Kincaid, J. (1993). From Cooperation to Coercion in American Federalism: Housing, Fragmentation, and Preemption, 1780-­ 1992. Journal of Law and Politics, 9(Winter), 333–433. Kincaid, J. (2001). The State of U.S. Federalism, 2000-­2001: Continuity in Crisis. Publius: The Journal of Federalism, 31(3), 1–69. Kincaid, J. (2011). The Rise of Social Welfare and Onward March of Coercive Federalism. In J. W. Meek and K. Thurmaier (Eds.), Networked Governance: The Future of Intergovernmental Management (pp. 8–38). Sage/CQ Press. Kincaid, J. (2014). The Federalist and V. Ostrom on Concurrent Taxation and Federalism. Publius: The Journal of Federalism, 44(2), 275–297. Kincaid, J. (2017). The Eclipse of Dual Federalism by One-­ Way Cooperative Federalism. Arizona State Law Journal, 49(3), 1061–1089. Lamb, C. M. and Wilk, E. M. (2010). Civil Rights, Federalism, and Administrative Process: Favorable Outcomes by Federal, State, and Local Agencies in Housing Discrimination Complaints. Public Administration Review, 70(3), 412–421. Mullins, B. (2006). As Earmarked Funding Swells, Some Recipients Don’t Want It. Wall Street Journal, 26 December, A1 and A10. Polk, J. K. (1847). Veto Message. Journal of the House of Representatives of the United States, 43(15December), 82. Roberts, P. S. (2010). Our Responder in Chief. National Affairs, 5(Fall), 76–90. Sobel, R. S. and Crowley, G. R. (2014). Do intergovernmental grants create ratchets in state and local taxes? Public Choice, 158(1/2), 167–187. Tax Foundation. (2021). Summary of the Latest Federal Income Tax Data, 2020 Update. Tax Foundation, https://taxfoundation.org/summary-­of-­the-­latest-­federal-­ income-­tax-­data-­2020-­update/ (accessed 17 November 2021). U.S. Advisory Commission on Intergovernmental Relations. (1984). Regulatory Federalism. U.S. ACIR. U.S. Advisory Commission on Intergovernmental Relations. (1992). Federal Statutory Preemption of State and Local Authority. U.S. ACIR. U.S. Advisory Commission on Intergovernmental Relations. (1994). Federally Induced Costs Affecting State, Local, and Tribal Governments. U.S. ACIR. U.S. Office of Management and Budget (2021). Budget of the U.S. Government, Fiscal Year 2022, Historical Tables, Table 12.1. U.S. Government Printing Office.

3 FEDERALISM AND DEMOCRACY The Need for a Differentiated Approach Patricia Popelier

Introduction

Federal systems are on the rise worldwide. About 40% of the world’s population lives in federal systems (Hueglin, 2013, p. 27). At the same time, democracies are declining. Less than one-­third of the world’s population lives in full-­ fledged democratic countries (Idea, 2021, p. vii). Opinions differ widely about the exact relationship between federal systems and democracy. Some scholars claim complete coincidence; others hold that they are contradictory. Much depends then on what exactly is meant by federalism and by democracy. This chapter does not pretend to settle this discussion. It merely points to their basic meanings and distinguishes those forms that are relevant for the argument. In doing so, it mainly follows Hueglin’s (2019, p. 24) plea to take federalism seriously as ‘a normative proposition of political legitimacy in its own right’. The chapter therefore does not join the scholarship that considers democracy as a defining feature of federal systems. For example, Burgess (2012, p. 22–27), arguing that democratic ‘liberty’ is a federal value, distinguishes six forms of federal systems: the ‘mature’ democratic forms and the others – ‘emerging’, ‘flawed’, ‘incomplete’, ‘transitional’ and ‘aspiring’, depending on how democratic they are. Swenden (2006, p. 10) also holds that federal states are by definition democratic. In the section ‘Forms of federalism and democracy’, this chapter proposes an argument as why this contention is ‘ideologically flawed’ (Riker, 1964, p. 13–15; 139–145). It is also methodologically inadvisable. For too long, federalism in non-­ western, emerging or non-­ democratic countries has been ignored in federal theory. As a result, the operation of federalism as a form of multinational conflict management remained DOI: 10.4324/9781003461197-5

Federalism and Democracy  47

on the fringes of traditional federal theory, whereas this is exactly where the most important challenges of contemporary federalism lie. This is especially the case in Asia, where a mixture of regional and multinational federal arrangements is increasingly tried in systems that face a ‘national identity question’ (He, 2007, p. 2). This does not mean that federalism and democracy do not interact. When dissected in their different forms, it is possible to see where they contrast (section ‘Federalism and democracy: contrasting effects’) and where they reinforce each other (section ‘Federalism and democracy: reinforcing effects’). Forms of Federalism and Democracy

A striking example of the confusion that is created when elements of federalism and democracy are mixed is where referendums are considered a tool for the resolution of federalism disputes. According to Watts (2008, p. 7), a mechanism to resolve such disputes is a defining feature of federations, for which systems can choose between courts and referendums. Most probably, this has to do with the ‘Hamiltonian’ approach (Pinder, 2007, p. 2), which identifies features of model federations and then generalizes them as defining features for all federations (Popelier, 2021, p. 15–32). Not including referendums would exclude Switzerland from the list of federations, which would have been an undesirable outcome. Judicial review and referendums are sometimes seen as alternatives because both allow citizens to invalidate a law, either through court or a popular veto (Wheare, 1953, p. 61, 68), and both urge governments to take into account citizen’s interests, under the threat of judicial review or a referendum (Rothmayr, 2001, p. 80). However, the resolution of federal disputes is a mechanism to maintain (or shift) the federal power balance. When citizens vote in a referendum, they do not express their opinion on whether it is adopted by the lawful level of government but on whether they approve of the proposal regardless of which authority issues the measure. Referendums simply do not resolve federalism disputes. This already reveals that at their core, federalism and democracy revolve around different things. Regardless of the divergent views on what federalism actually is, there is a common understanding that in its essence, it is about the relationship between territorial levels of authority (Duchacek, 1970, p. 191; Halberstam, 2012, p. 580–581; Livingston, 1956, p. 2–3; Mueller, 2015, p. 4). By contrast, democracy is about organizing ‘political freedom’ for individual citizens, considered as the freedom from external coercion due to citizens’ involvement in collective decision-­ making (Kelsen, 1929, p. 4–5). Where democracy revolves around individual liberty, federalism aims at protecting communitarian liberty (Kincaid, 1995, p. 38). This allows to disentangle the fallacy in the reasoning that all federal systems are by definition democratic. In this reasoning, federal systems are defined as a combination of

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self-­rule and shared rule (Elazar, 1987, p. 5–6), and the argument is that the requirement for federal and regional parliaments to be directly elected in a free and open election process is a corollary of ‘self-­rule’ (Swenden, 2006, p. 10). However, the notion of ‘self-­rule’ refers to the autonomy of territorial entities, not to the people themselves. In any event, federalism should not be examined from the viewpoint of autonomy alone. This is a legacy from old literature based on the initial US model of dual federalism. By contrast, the emergence of cooperative federalism has shifted the focus on how the different entities interact to reach common goals (Schütze, 2009). Federal systems are therefore not measured by the degree of autonomy alone. Instead, they are in search of a specific balance between autonomy and cohesion (Popelier, 2021, p. 50–53). In turn, democracy has too often been identified with the majority principle (Lively, 1975, p. 13). The argument is that this alone gives political freedom to all because minorities can be turned into majorities. Gradually, one begins to realize that this reasoning does not apply in heterogeneous societies, where sub-­groups are perpetually minorized (Lijphart, 1984, p. 22). Therefore, the concept of consensus democracy emerged, where sub-­groups are included in decision-­ making through institutional features such as coalition governments, supermajority requirements and veto rights (Lijphart, 1984, p. 22). This way, democracy is no longer centered on individual freedom but also on groups. These groups are not necessarily territorially concentrated, but if they are, then a federal system that grants these groups some autonomy is part of the consensual arrangement (Lijphart, 1985, p. 5). Federalism, then, is regarded as an essential part of democracy in pluralist political systems (Ostrom, 1991, p. 23). Both are power-­sharing arrangements, that is, arrangements for distributing power among collectivities that compete for power (McCullogh, 2021, p. 3). A power-­sharing system can use one type of arrangement – consociationalism or federalism – or combine both to let groups coexist in divided societies. In the latter case, the type of consociational arrangement will also impact on the federal arrangement, and vice versa. This can be visualized in Figure 3.1, that distinguishes forms of federal systems according to the proportion of autonomy and cohesion that is laid down in the institutional framework. In power-­sharing literature, two schools of thought have different recipes for accommodating ethnic groups in divided societies (Cochrane et al., 2018; McGarry et al., 2008). Centripetalists such as Horowitz (2002) favor an integrative, cross-­community model. Consociationalists such as Lijphart (2002, 2004) prefer a model with guaranteed group representation firmly rooted in their separate subgroups. In Figure 3.1, the centripetalist model would be situated in the first row, with high cohesion. Here, the institutional design aims at the involvement of territorial sub-­groups in such a way that all (central and subnational) entities pursue a general interest that exceeds the sum

Federalism and Democracy  49

SUBNATIONAL AUTONOMY CO

High – Low:

High – Medium:

High – High:

HE

Integrationist MTS

Federation type 1

Federation type 2

SI ON

Medium – Low:

Medium – Medium:

Medium – High:

Consociation-based MTS

Regionalized system

Confederation

Low-Low:

Low – Medium:

Low – High:

Deconcentrated

unitary Decentralized system

Political Association

system

FIGURE 3.1 Federal

forms of state.

Source: Popelier, 2021, p. 58

of partial interests. By contrast, the consociational model prefers a design that involves the subnational entities in decision-­making, but in such a way that their particular interests determine central decision-­ making. Such a model is represented in the second row, with medium cohesion. Low cohesion means that either central or subnational interests prevail, with little regard for the interests of other entities. Where the democratic model also regards sub-­groups, and sub-­groups coincide with territorial entities, the federal and democratic models are entangled. The centripetalist model, however, weaves in the democratic model in a more complete way because it has more regard for individual citizens’ involvement, whereas in the consociational model, group rights outweigh individual rights. This is further discussed in the section ‘Federalism and democracy: contrasting effects’. The relationship between democracy and federalism is thus a complex one. Democracy and federalism are conceptually different. Arguably, democracies are more likely to grant political autonomy to subnational entities than non-­ democratic systems. But this is not necessarily so: He (2007, p. 13) notices that in countries such as Pakistan and Malaysia, a form of federalism was established that ‘coexists with, and even supports, the authoritarian structure’. In turn, a federal organization does not by definition have a positive effect on democracy (Filippov & Shvetsova, 2013, p. 167). Especially in divided states, this is not even its ambition. Choudhry (2014, p. 164) reminds us that federal post-­ conflict arrangements in countries such as Ethiopia, Iraq and Nigeria do not promote public accountability and policy responsiveness, or combat majority tyranny, but have as a principal aim to avoid civil war or secession. At the same

50  Patricia Popelier

time, in India, Sri Lanka and the Philippines, where conflict management concerns rather than democratic justifications explain federal forms of state, these arrangements may just as well have democracy-­enhancing side-­effects such as political competition (Choudhry, 2014, p. 187–194). Ultimately, much depends on the form of the federal system and on how we conceive democracy. It turns out then that, depending on concept and form, federalism can have both undermining and reinforcing effects on democracy – and vice versa. This is further examined in the following sections. Federalism and Democracy: Contrasting Effects

Federalism conflicts with a majoritarian concept of democracy, in particular where it favors a super-­majority to safeguard subnational interests over an unrestrained majority rule (Basta Fleiner & Gaudreault-­ DesBiens, 2015, p. 145; Friedrich, 1965, p. 8–9; Friedrich, 1968, p. 196). A democratic ­concept based on the equality of citizens and their individual rights favors uniform decisions taken by a centralized government (Benz, 2013, p. 72). A consociationalist form of federal system may run counter to individual rights to vote or stand for election, for example, if the right to vote or to stand for election is linked with group identity. The Bosnia and Herzegovina case is an example par excellence (Graziadei, 2016; McCrudden & O’Leary, 2013). Here, the European Court of Human Rights held that the power-­ sharing mechanism introduced in the Dayton Agreement led to the exclusion of persons not affiliated with the constituent people, from the right to stand for election to the Federal House of Peoples or the Presidency of Bosnia and Herzegovina (ECtHR, Grand Chamber, Sedjic and Finci v Bosnia and Herzegovina [App. Nos 27996/06 and 34836/06] 22 December 2009; Zornić v Bosnia and Herzegovina [App. No. 3681/06] 15 July 2014; Pilav v Bosnia and Herzegovina [App. No. 41939/07] 9 June 2016). Dicey (1915, p. 95–96) was opposed to federalism because in his view, it necessarily implies ‘a general willingness to yield to the authority of the law of courts’. The judicial reviews of Acts of Parliament are, in this perspective, considered a counter-­majoritarian instrument that does not fit in a democratic concept based on parliamentary sovereignty. In reality, courts can resolve conflicts of competence in most federal systems, but not in all. In Switzerland, the courts can review Cantonal, but not federal statutes (Lienhard et al., 2017). In Ethiopia, a (malfunctioning) system of political review is established (Fessha & Ayele, 2020; Hessebon & Idris, 2017). Either way, only in very few cases has constitutional review been established specifically as a consequence of federalism. Belgium is one of these cases, where the Constitutional Court originally was only competent to resolve federalism disputes. In these cases, judicial review does not interfere in the relationship between the Parliament and citizens, and it does not assess whether a statute

Federalism and Democracy  51

is substantively in accordance with the constitution. It merely keeps central and subnational parliaments within the limits of their competences. Benz (2013, p. 73) pointed out that federalism is in tension with democracy where it extends the role of executives and courts at the expense of parliaments. Then again, in presidential regimes, a power shift to the executive can result in more responsive state governance if state parliament elections are second order, meaning that they reflect voters’ preferences at the national level (Schleicher, 2017, p. 769–770). Federalism extends the role of executives, in particular, in co-­operative – and therefore more cohesive – forms of federalism. Intergovernmental cooperation usually takes place at the executive level, with parliaments ‘called upon to merely ratify outcomes which they are not expected to influence’ (Chryssochoou, 1998, p. 8). A comparative study led Poirier & Saunders (2015, p. 482) to conclude that intergovernmental cooperation ‘can negatively affect political accountability, citizen participation and some other democratic values’. Such problems of accountability emerge in particular in complex federal systems, where competences are fragmented or not clearly delineated, or policy-­ making relies on structural intergovernmental cooperation (Chryssochoou, 1998, p. 8). This mystifies which government is actually responsible, making it difficult for citizens to hold the responsible government to account. Especially, the opaqueness of intergovernmental procedures ‘tend to blur lines of responsibility, leaving citizens less able to call governments to account as each order blames the other for policy problems and failures’ (Poirier & Saunders 2015, p. 482). Accountability deficiencies also arise in the case of cross-­boundary issues. In those cases, self-­rule enables territorial entities to pursue their particular goals, and shared rule may enable them to veto central decisions. If this prevents decision-­making in the general interest, the responsible actors cannot be held accountable to persons outside their constituency who are negatively affected by the decision. This problem has been discussed in particular from an economic point of view. Subnational entities involved in central decision-­making but responsible only for a regional electorate can be expected to divert resources to the regional level without much concern for its macroeconomic impact on the entire federal system. In reality, this is the case in some, but not all federal systems, depending on several factors. For example, Rodden & Wibbels (2002, p. 528) showed that an integrated party system reduces the costs of interstate opportunism. The role of a cohesive institutional design has not been researched, but based on Rodden and Wibbels’ finding, we can hypothesize that high-­cohesive – that is, more integrated –federal systems lower the risk of interstate ­opportunism, though at the cost of complexity. The same can be argued for low cohesive but highly centralized federal systems, but then again those systems may suffer from another democratic deficiency, if the central level ignores

52  Patricia Popelier

the interests of minorized regional sub-­groups. By contrast, we can expect that consociation-­based systems (low-­autonomy; medium-­cohesive) are more vulnerable to interstate opportunism. For example, it has been noticed that in Belgium, the transfer of important distributive and public procurement policies to the subnational entities reduced the scope for the notorious ‘waffle-­ iron strategy’ where benefits for one group always have to be matched by commensurate benefits for the other group (Swenden & Jans 2006, p. 888). However, for the competences that remain at the federal level, political responsibility is very partial, as the region-­based parties are only accountable to the voters belonging to their own language community, and the electorate cannot sanction or award politicians belonging to the other language community. Still another problem was raised with regard to the more complex relationship between federal, federated and local levels. Autonomy for federated entities may come at the expense of more proximate local autonomy. As a result, federalism brings more distance, more centralism and more bureaucracy (Downs, 1999, p. 102). This criticism has gained strength with the rise of metropolitan cities. Cities differ from other local entities on the basis of their size as well as the density and diversity of their population (Hirschl, 2020, p. 226). For this reason, they have to deal with major contemporary challenges such as inequality, crime or climate change, more than other local entities. Scholars have criticized federal theory for only focusing on federal and federated entities, meanwhile making (citizens in) metropolitan cities voiceless against the more dispersed rural villages with very different interests and preferences (Blank, 2010, p. 511; Stahl, 2017). The neglect of metropolitan needs and interests, however, is a problem that may arise both in federal and non-­federal systems. In federal systems, again, much depends on how the system is organized. Metropolitan cities may be given the status of a federated entity in one system, or they may have a special status in an asymmetric type of federal system. Unlike traditional federal theory, dynamic federalism accommodates different types of subnational entities, including local entities, as well as asymmetric forms of federalism. Again, a cohesive type of federalism seems more suitable to deal with the problems of metropolitan cities: they are invaluable partners of the central entities in dealing with major cross-­bordering issues, and they need to coordinate with the metropolitan hinterland that feels the effects of measures taken in the cities. Federalism and Democracy: Reinforcing Effects

At the same time, scholars have pointed out that federal systems offer ­opportunities for a stronger democratic government. It was already pointed out above that in multinational societies, consociational as well as integrative forms of consensus democracy overlap with medium and high cohesive forms

Federalism and Democracy  53

of federalism, if sub-­groups are concentrated in territorial units. Stepan (1999) already noticed that all democratic multinational political systems are also federal systems, but that they have different characteristics than the traditional forms based on the US model. But in other systems as well, federalism and democracy have reinforcing effects. Palermo & Kössler (2017, p. 122) acknowledge that federalism is not a driver for democratic innovation, but they do see it as a catalyst. One reason is that federal systems offer smaller arenas of self-­governance, with governance closer to the people, more opportunities to hold elected offices or participate in a more direct way in public affairs (Kincaid, 1995, p. 36). This way, federalism reinforces the democratic purpose of building ‘civic competence’, which Chryssochoou (1998, p. 2) defines as ‘the ­institutional capacity of citizens to be actively engaged in the actual process of government’. Of course, the same applies in very decentralized systems with strong local entities. But in the scheme of dynamic federalism, these types also count as federal systems. Basically, one could argue that in democratic systems, federalism is likely to reinforce democratic government. By contrast, in non-­democratic systems, federalism does not necessarily have this effect because most likely in those systems, subnational entities, in turn, are not organized in a democratic way. But even in a democratic government, the multiplier effect of federalism can have adverse consequences, for example, overload and voter fatigue (Downs, 1999, p. 100–101). Also, the effect of second-­order elections should not be overlooked, which means that votes are based on national-­party preferences (Schleicher, 2017, p. 265). Moreover, the ‘closeness’ argument does not fit well with coming-­together federations, where powers are transferred to a more global level and distance is widened instead of narrowed. This may explain, among other things, the democratic deficiency claims in the European integration project. Another reason for seeing federalism as a catalyst for democratic government is that federalism offers additional checks and balances through competition and cooperation (Kincaid, 1995, p. 36). This applies in particular in more cohesive forms of federalism. For example, shared powers allow subnational entities to act if the central government fails to do so and allow the central government to interfere if the subnational entities overstep basic boundaries. Checks are also internalized in organic forms of administrative federalism, where subnational entities execute federal law and subnational entities are involved in federal law-­ making to secure implementation. It is more difficult in dual forms of federalism, where central and subnational entities have separate and exclusive fields of competences and cannot interfere in each other’s policies. In the end, it can be argued that a system of checks and balances, though considered a fundamental aspect of liberal democracy, is a principle of constitutionalism in the pursuit of control against government abuse, rather than a democratic principle that ensures legitimacy. The latter is a principle of

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organized trust, the first one of organized distrust. Either way, public choice theory stipulates that the political competition organized by federalism urges governments to take into account citizens’ interests, under the threat of citizens ‘voting with their feet’ (Frey & Bohnet, 1993, p. 80). Here, societal structure plays a role. Citizens will be less inclined to move in heterogeneous societies, if this implies that they will have to accommodate to a very different culture and learn another language (Downs, 1999, p. 100). Perhaps the strongest case for the reinforcing effects of federalism on democracy is found in empirical research that finds that decentralized policy-­ making has a positive effect on rights protection and economic performance, but only in democratic systems (Inman, 2008). Other empirical research studies nuance the correlation between federations and democracy. Lane and Ersson (2005) showed no positive impact of fiscal decentralization on democracy, and a significant positive correlation between political decentralization and democracy but only in certain contexts, and not necessarily in ‘classic’ federations alone. Figure 3.1 already showed that autonomy – including policy decentralization – can be provided in various forms of state. The question is whether autonomy is coupled with cohesion. Unfortunately, empirical research tends to define federalism in terms of autonomy rather than cohesion. The question is whether cohesive institutional design correlates more strongly with democracy, and whether it strengthens the impact of political decentralization rights protection and economic performance. On the contrary, a democratic government may also have a positive effect on federalism. For example, in Switzerland, the level of citizens’ trust in cantonal government shows some positive correlation with the intensity of direct democracy (Bauer et al., 2018, p. 126, 129, 136). At the same time, compared to other European countries, Swiss citizens also put high trust in the federal government (Bauer et al., 2018, p. 122, 135). Arguably, federalism is most stable if citizens trust both central and subnational governments. This points to the presence of social cohesion, meaning that the members of a collectivity share a feeling of togetherness, expressed in positive attitudes and a desire to maintain membership (Friedkin, 2004, p. 410; Schiefer & van der Noll, 2017). We can hypothesize that social cohesion provides a good basis for federal systems that are either highly cohesive (trust facility cooperation), and/or highly centralized (in the absence of salient regional distinction). Conclusion

For the organization of political systems, federalism and democracy are two different notions with a mutual impact. This impact is very complex, with undermining as well as reinforcing effects, depending on the focus of analysis and the type of federal or democratic system. It is this complexity that makes it necessary to separate both notions. Mixing the two makes it impossible to determine the precise effects of democracy on federalism, or vice versa.

Federalism and Democracy  55

This is important for (experiments with) constitutional design. For example, the question of whether federalism is likely to consolidate and further democratic developments in emerging democracies is too rudimentary. A more nuanced question is what form of federal organization may impact positively on what form of democratic development. This brings the issue within the theme of this edited volume, which focuses on cooperative federalism as a specific type of federal arrangement. Cohesive types of federalism are also more cooperative forms of federal systems because institutional cohesiveness is measured not only in terms of solidarity systems, but also in terms of decision-­making processes that involve all central and decentralized tiers in view of a solution that respects the integrity of the entire system and the specific needs of the different entities. We have hypothesized that cooperative federal systems are more likely to be adopted in the presence of social cohesion. This is because we can expect that high citizens’ trust in both the central and subnational government makes it easier to cooperate in a ‘federal spirit’, that is, with mutual respect for the needs and specificities of each entity as well as the overall interest. The case of Switzerland gives anecdotal evidence for this hypothesis. Economic conditions facilitate this as well. It was noted that, economically, Switzerland performs well and in a homogeneous way, which means that there is a relatively low need for significant inter-­regional transfers (Bauer et al., 2018, p. 135) and therefore little cause for conflict. Social cohesion, then, is the most rewarding situation to implement both democracy and federalism. It is a much more demanding task to balance diversity, resulting in internal rivalries among the different entities, with overall federal cohesion (Chryssochoou, 1998, p. 4). This feeds the discussion as to whether centripetal or consociationalism is a more optimal design for divided societies. If consociational democracy proves a better fit for divided societies characterized by distrust between national groups and political elites, then this in turn aligns better with medium cohesive federal arrangements – easily translated into dual federalism – to secure control of national groups but at the same time avoid deadlock. In other words, even if cooperative federalism would appear as the most optimal form of federalism, it would only be able to fulfill its potential in the right contextual conditions. The discussion above showed that cooperative federalism raises several problems for democratic government. Based on intergovernmental cooperation, it pushes the Parliament into the background and may negatively affect transparency and political accountability – although it was also pointed out that executive dominance may have added democratic value in presidential systems. On the other hand, cooperative federalism was expected to provide for checks and balances, to lower the risk of interstate opportunism, and to accommodate the need for co-­government with local, regional and national authorities in dealing with cross-­border problems. In the end, our assumptions as to what cooperative federalism means for democratic government

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(and vice versa) are highly speculative. The reason is that empirical studies do not usually differentiate between types of federal systems. They have a unidimensional focus on autonomy, ignoring the cohesive potential of federal arrangements altogether. Empirical research shows that policy decentralization correlates with rights protection and economic performance though only in some federal systems (Lane & Ersson, 2005) does it make a difference. References Basta Fleiner, Lidija and Jean-­François Gaudreault-­DesBiens. (2015). ‘Federalism and Autonomy’, in Mark Tushnet et al. (eds) Routledge Handbook of Constitutional Law. Routledge. Bauer, Paul, Markus Freitag and Pascal Sciarini. (2018). ‘Political Trust in Switzerland: Again a Special Case?’, in Jack Jedwab and John Kincaid (eds), Identities, Trust, and Cohesion in Federal Systems. Mc Gill-­Queen’s University. Benz, Arthur. (2013). ‘Dimensions and Dynamics of Federal Regimes’, in Arthur Benz and Jorg Broschek (eds), Federal Dynamics. Continuity, Change, & the Varieties of Federalism. Oxford University Press. Blank, Yishai. (2010). ‘Federalism, Subsidiarity, and the Role of Local Governments in an Age of Global Multilevel Governance’, Fordham Urban Law Journal 37:2509–558. Burgess, Michael. (2012). In Search of the Federal Spirit .Oxford University Press. Choudhry, Sujit. (2014). ‘Classical and Post-­ conflict federalism: Implications for Asia’, in Rosalind Dixon and Tom Ginsburg (eds) Comparative Constitutional Law in Asia. Edward Elgar. Chryssochoou, Dimitris. (1998). ‘Federalism and democracy reconsidered’, Regional & Federal Studies 8:1–20. Cochrane, Feargal, Neophytos Loizides and Thibaud Bodson. (2018). Mediating Power Sharing. Routledge. Dicey, Albert. (1915). Introduction to the Study of the Law of the Constitution. MacMillan, 8thed. Downs, William. (1999). ‘Accountability Payoffs in Federal Systems? Competing Logics and Evidence from Europe’s Newest Federation’, Publius: The Journal of Federalism. 29:87–110. Duchacek, Ivo. (1970). Comparative Federalism: The Territorial Dimension of Politics. (Holt, Rinehart & Winston, 1970. Reissued by University Press of America, 1987). Elazar, Daniel. (1987). Exploring Federalism, University of Alabama Press. Fessha, Yonatan & Zemele Ayele. (2020). ‘Giving ‘shape and texture’ to a federal system? Ethiopia’s courts and its unusual umpire’, in Yonatan Fessha and Karl Kössler (eds), Federalism and the Courts in Africa. Design and Impact in Comparative Perspective. Routledge. Filippov, Mikhail and Olga Shvetsova. (2013). ‘Federalism, democracy and democratization’, in Arthur Benz and Jorg Broschek (eds), Federal Dynamics. Continuity, Change, & the Varieties of Federalism. Oxford University Press. Frey, Bruno and Iris Bohnet. (1993). ‘Democracy by competition: referenda and federalism in Switzerland’, Publius: The Journal of Federalism. 23:71–80.

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Friedkin, Noah. (2004). ‘Social Cohesion’, Annual Review of Sociology, 30: 409–425. Friedrich, Carl. (1965). ‘New Tendencies in Federal Theory and Practice’, Jahrbuch des Öffentliches Rechts, 14:1–14. Friedrich, Carl. (1968). Constitutional Government and Democracy: Theory and Practice in Europe and America. Blaisdell Publishing Company. Graziadei, Stefan. (2016). ‘Democracy v Human Rights? The Strasbourg Court and the Challenge of Power Sharing’, European Constitutional Law Review, 12:54–84. Halberstam, Daniel. (2012). ‘Federalism: History, Policy, Law’, in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law. Oxford University Press. He, Baogang. (2007). ‘Democratization and federalization in Asia’, in Baogang He, Brian Galligan and Takashi Inoguchi (eds) Federalism in Asia. Edward Elgar. Hessebon, Gedion and Abduletif Idris. (2017). ‘The Supreme Court of Ethiopia: Federalism’s Bystander’, in Nicholas Aroney and John Kincaid (eds) Courts in Federal Countries. Federalists or Unitarists?. University of Toronto Press. Hirschl, Ran. (2020). City, State. Constitutionalism and the Megacity. Oxford University Press. Horowitz, Donald. (2002). ‘Constitutional design: proposals v. processes’ in Andrew Raynolds (ed), The architecture of democracy. Oxford University Press. Hueglin, Thomas. (2013). ‘Comparing federalism: Variations or distinct models?’, in Arthur Benz and Jorg Broschek (eds), Federal Dynamics. Continuity, Change, & the Varieties of Federalism. Oxford University Press. Hueglin, Thomas. (2019). ‘Federalism and political theory: a case of mutual neglect’, in John Kincaid (ed), A Research Agenda for Federalism Studies. Edward Elgar. Idea. (2021). The global state of democracy-­2021. https://www.idea.int/gsod/sites/ default/files/2021-­11/the-­global-­state-­of-­democracy-­2021_0.pdf Inman, Robert. (2008). Federalism’s Values and the Value of Federalism NBER Working Paper No. 13735. Kelsen, Hans. (1929). Vom Wesen und Wert der Demokratie.JCB Mohr. Kincaid, John. (1995). ‘Values and Value Tradeoffs in Federalism’, Publius: The Journal of Federalism. 25:29–44. Lane, Jan-­Erik and Svante Ersson. (2005). ‘The riddle of federalism: does federalism impact on democracy?’. Democratisation. 12:163–182. Lienhard, Andreas et al. (2017). ‘The Federal Supreme Court of Switzerland: judicial balancing of federalism without judicial review’, in Nicholas Aroney and John Kincaid (eds) Courts in Federal Countries. Federalists or Unitarists?. University of Toronto Press. Lijphart, Arend. (1984). Democracies: patterns of majoritarian and consensus government in twenty-­one countries. Yale University Press. Lijphart, Arend. (1985). ‘Non-­majoritarian democracy: a comparison of federal and consociational theories’. Publius: The Journal of Federalism. 15:3–15. Lijphart, Arend. (2002). ‘The wave of power-­sharing democracy’, in Andrew Reynolds (ed) The Architecture of Democracy, ed. Andrew Reynolds.Oxford University Press. 38. Lijphart, Arend. (2004). ‘Constitutional design for divided societies’, Journal of Democracy. 15:96–109.

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Lively, Jack. (1975). Democracy. St. Martin’s Press. Livingston, William. (1956). Federalism and Constitutional Change. Oxford University Press. Mccrudden, Christopher & O’Leary, Brendan. (2013). Courts and Consociations: Human Rights versus Power-­Sharing. doi:10.1093/acprof:oso/9780199676842.001.0001 McCullogh, Allison. (2021). ‘Introduction: Power-­ Sharing in Europe – From Adaptability to End-­Ability’. In Soeren Keil and Allison McCullogh (eds), Power-­ Sharing in Europe. Palgrave MacMillan. McGarry, John, Brendan O’Leary, and Richard Simeon. (2008). ‘Integration or accommodation? The enduring debate in conflict regulation’, in S. Choudry (ed) Constitutional Design for Divided Societies. Oxford University Press. Mueller, Sean. (2015). Theorizing Decentralization. ECPR Press. Ostrom, Vincent. (1991). The Meaning of American Federalism: Constituting a Self-­ governing Society. ICS Press. Palermo, Francesco and Karl Kössler. (2017). Comparative Federalism. Constitutional Arrangements and Case Law. Hart Publishing. Pinder, John.( 2007). ‘Multinational federations. Introduction’, in Michael Burgess and John Pinder (eds), Multinational Federations. Routledge. Poirier, Johanne and Cheryl Saunders. (2015). ‘Conclusion: Comparative Experiences of Intergovernmental Relations in Federal Systems’, in Johanne Poirier, Cheryl Saunders and John Kincaid (eds) Intergovernmental Relations in Federal Systems. Oxford University Press. Popelier, Patricia. (2021). Dynamic Federalism. A New Theory for Cohesion and Regional Autonomy. Routledge 2021. Riker, William. (1964). Federalism: Origin, Operation, Significance. Little Brown and Company. Rodden, Jonathan and Erik Wibbels. (2002). ‘Beyond the Fiction of Federalism’. World Politics. 54:494–531. Rothmayr, Christine. (2001). ‘Towards the Judicialisation of Swiss politics?’ . West European Politics. 24:77–94. Schiefer, David and Jolanda van der Noll. (2017). ‘The essentials of social cohesion: a literature review’. Social Indicators Research. 132:579–603. Schleicher, David. (2017). ‘Federalism and State Democracy’. Texas Law Review. 95:763–820. Schütze, Robert. (2009). From Dual to Cooperative Federalism. The Changing Structure of European Law. Oxford University Press. Stahl, Kenneth. (2017). ‘Preemption, federalism, and local democracy’.Fordham Urban Law. 44: 133–180. Stepan, Alfred. (1999). ‘Federalism and Democracy: Beyond the US Model’. Journal of Democracy. 10:19–34. Swenden, Wilfried. (2006). Federalism and Regionalism in Western Europe. A Comparative and Thematic Analysis. Palgrave MacMillan. Swenden, Wilfried and Maarten Jans. (2006). ‘‘Will it stay or will it go?’ Federalism and the sustainability of Belgium’.West European Politics. 29:877–894. Watts, Ronald. (2008). Comparing Federal Systems. Queen’s University, 3rded. Wheare, Kenneth. (1953). Federal Government. Oxford University Press.

PART II

Cooperative Federalism in India

4 FORTUNES OF FEDERATING UNITS IN INDIA Krishna K. Tummala

Introduction

Over 2,500 years ago, Plato advised that “…states are as men are; they grow out of human character” (Jowett, 1937). Taking off from Gaus (1947), Riggs popularized that thought which can be summed up under two criteria: culture and context (Tummala, 2022). It must, however, be noted that no two federal systems in the world are alike. Each federal form is uniquely designed to suit the individual needs of the country concerned. Comparisons with such a variety of systems would be burdensome in a short chapter like this. Some important comparisons nonetheless should enhance an understanding of the Indian system and are drawn between the oldest democracy, the United States (US), which is a prime example of a federal form, and the largest working democracy, also with a federal form – India. Moreover, the two prominent contributors to the writing of the Indian Constitution, besides their extensive knowledge of several world governments, had a great deal of experience with the US system. B. R. Ambedkar obtained his PhD at Columbia University in the US, besides degrees from the London School of Economics and University of London. It was at the former that he came under the influence of one of the most prominent democratic theorists, John Dewey. B. N. Rau, an alumnus of the Indian Civil Service (ICS), who served as the Constitutional Advisor. Besides traveling to Canada, Ireland and the United Kingdom, he went to the US where he had discussions with the Supreme Court Justice, Felix Frankfurter. To draw an initial stark contrast, the US federal structure reflects the dictum laid down by Dicey (1960, p. 141). The people “must desire union, and not unity.” The original 13 colonies, having found out their shortcomings and the advantage of a united central government, came together to form a DOI: 10.4324/9781003461197-7

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federation. Thus, it is bottom-­up. The US Constitution deals with only the federal government, while each of the federating States has its own separate and distinct Constitution. Contrarily, India was administratively united under the British rule. With the exception of largely independent princely States, the rest of the States were the creation of the Centre (as the federal government in India is commonly known). Thus, it is top-­down. There is only one Constitution covering both the Centre and States. As to powers, the US federal government derives its powers “delegated” to it by States under Article 1 (From time to time, the US Supreme Court expanded these by reading “implied” powers). Following largely the 1935 Act (passed under the British rule), powers in India are divided into three different Lists: “Union,” “States” and “Concurrent.” The first and second confer separate powers to the Centre and State governments, respectively. The last list of “Concurrent” powers may be exercised by both the Centre and States, but in case of a conflict, the Centre prevails. Under the Tenth Amendment to the US Constitution, powers that are not “delegated” to the federal government are retained by States, or the people. But in India, Article 248 confers “residuary” powers, that is, powers not devolved to States are to be exercised by the Centre.1 Admitting those fundamental differences, it is time to turn attention to India (with occasional comparisons, when possible and useful). Given the diversity of religions, cultures, regions and languages, India could not but opt for a federal form of government. The Centre denotes the federal government, and the federating units are the States and the Union Territories (UTs) (Currently, there are 28 States and seven Union Territories). The 73rd and 74th Amendments to the Constitutions added in 1992 formalizing local-­self governments are dealt with elsewhere (Tummala, 1997), which are not relevant here. Despite the federal structure, as a defence against fears of fissiparous tendencies, and in an effort to preserve unity of the nation, some features such as the “Emergency Provisions” in Part XVII (Articles 352–360) were incorporated into the Constitution by whose use the government can be turned into a near unitary form. The name in the Constitution, however, confirms it as “Union of States.” Noting these seemingly competing provisions (between “unitary” and “federal”), Alexandrowicx (1957, p. 159) thought India’s system as sui generis – a class by itself. Consider other diverse opinions of some important writers. Observing the several provisions in the Constitution enabling the Centre to intervene that would result in reducing the independence of State governments, Wheare (1953, p. 27–28) wrote: It seems clear that, after allowing for the federal features of the Indian Union, it can only be concluded that the Constitution is quasi-­federal.” He further confirms: “A quasi-­federal system may well be the most appropriate for India.” For, the new independent nation found unity as the

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raison d’etre in the face of several fissiparous tendencies stemming out of its great diversity. Austin (1966, Preface: xii–xiii) was quite solicitous in his book that he called “a political history of the framing of the Constitution.” He wrote: “If the dream of the Constitution has not yet wholly been realized, India has become a great nation under it…. One test of a Constitution is whether it can provide a durable framework for government in the midst of great social and economic change. This the Indian Constitution has so far done.” Considering several factors which lead to “unity” in India, Appleby (1957, p. 3 and 8)2 also identified reasons for “disunity”. On top of his unity list was this: “Almost complete dependence of the Centre on the states for administration of social-­action programs, including almost everything in the crucial, national Welfare State dedication…” His first major concern however was stated thus: “(1) Constitutional structure—The nation is crucially dependent on the states for actual achievement of the chief programmatic objectives of the nation. The arrangement works now because operating through a historically-­derived administrative system of real competence in earlier terms, extraordinary leadership and an extraordinary dominance of an effectively one party system, that one party notably disciplined and led, it is possible to secure considerable consistency and cohesion. What of the future under more ordinary leadership, division of the control of states among different parties, and a growing sentiment for ‘autonomous status?” In summary, he stated (22): “No other large and important national government, I believe, is as dependent as India on theoretically subordinate but actually rather distinct units responsible to a different political control, for so much of the administration of what are recognized as national programmes of great importance to the nation.” For him it was clear (54) that the “…new government to have been formed in an extremely federal mould….” Thus, Indian federalism provides a rather baffling picture which is compounded in its actual working over the years. Starting with the formation of the Dravida Munnetra Kazhagam (DMK) in 1949 in the State of Madras (Tamil Nadu since 1968), followed by the Telugu Desam Party (TDP) in Andhra Pradesh in 1983 – both headed by famous film personalities with massive following – regional political parties had taken hold leading to several tensions between the Centre and the federating units – the States and UTs, the former more so. In this context, invoking Article 356 under the “Emergency Powers” Provisions, State Governors can advise the Centre to dismiss a duly elected State government in case of a “failure of constitutional machinery” (as they saw fit) and take over the administration of the State directly. The State legislature may be dismissed altogether and conduct fresh elections or may be left in a limbo till such time the political affairs settle down. Over a hundred such Emergency declarations were

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proclaimed since independence, some legitimately and others because the Centre found it irksome that a State was being governed by an Opposition party. This subject is vast and complex and has been dealt with at several other places by this writer (Tummala, 1986, p. 395; 1992, p. 538–553; 2007, p. 139–160), among others. Within the context of this chapter two Constitutional provisions – Articles 3 and 153-­162 and 239 – are of importance, in that the fortunes of federating units could be, and are, put under stress by the Centre. (For short, Article is noted as Art. in the rest of the Chapter.) Article 3

Before considering Art. 3, it is important to note the demands for linguistic provinces, commendably discussed by Austin (p. 236–243). He quoted Rau, the Constitutional Adviser: “One of the most difficult problems in the framing of India’s new Constitution will be to satisfy the demand for linguistic provinces….” As far back as in its 1920 Nagpur session, the Indian National Congress (Congress henceforth) deplored the arbitrary nature of drawing the boundaries of Provinces (as the federating units were known then) by the British. The (Jawaharlal) Nehru Committee Report recommended that “the main consideration must necessarily be the wishes of the people and the linguistic unity of the area concerned”. Soon after the elections to the Constituent Assembly which would write independent India’s new Constitution, the demands for Provinces based on language grew noisier as of August 1946 led by Pattabhi Sitaramayya, a member of the Congress Working Committee. A Commission under the Chairmanship of S. K. Dar was constituted which reported on December 10 1948 that “the formation of provinces on exclusively or even mainly linguistic considerations is not in the larger interests of the Indian nation and should not be taken in hand” (Shiva Rao, Vol. IV, 1967, p. 482). The discussion pertained to opposing considerations: Should the unity of the nation be preserved, or let the prospects of fissiparous tendencies continue? In fact, some thought that Provinces would indeed be a check against an overreaching Centre. But Nehru, Sardar Patel, Maulana Abul Kalam Azad and Rajendra Prasad (to be Prime Minister, Home Minister, Education Minister and President, respectively, following independence) were all against the sole criterion of language. Nehru, however, believed that some reorganization would eventually be needed, but the time was not propitious at the time when the Constituent Assembly was writing the Constitution. This contentious issue was not resolved. Instead, Art. 3 was incorporated. Austin traces the origins of Art. 3 to Section 290 of the Government of India Act, 1935, which in turn drew up on Chapter VI of the Australian Constitution. But the original source of all this is supposed to be Art. IV, Section 3, of the Constitution of the United States of America which deserves to be quoted herein full: “New States may be admitted by the Congress into

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this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislature of the States concerned as well as of the Congress.” (Emphasis added) Art. 3 of the Indian Constitution reads thus: “Formation of new States and alteration of areas, boundaries or names of existing States.—Parliament may by law: (a) Form a new State by separation of territory from any State or by uniting two or more States of parts of States or by uniting any territory to a part of any State; (b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; (e) alter the name of any State. Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period specified or allowed has expired”. (Emphasis added.) The following Explanation II of Art. 3 reads: “The power conferred on Parliament by clause (a) includes the power to form a new State or Union Territory by uniting a part of any State or Union Territory to any other State or Union Territory”. Starting with the agitation of the Telugu speaking population in the erstwhile Madras State, resulting in the death of the leader, Potti Sriramulu, the State of Andhra Pradesh was carved out of Madras as a separate State in 1953 (merging Telangana in 1956). Further, on the basis of the States Reorganization Committee Report in 1955, an Act was passed in 1956, and States have been reorganized several times since. The most recent case was that of the State of Jammu and Kashmir (J&K), which saw no internal peace ever since independence, and even led to two major wars with neighbouring Pakistan in 1947 and 1965 which occupied part of J&K soon after independence. (The Kargil war in 1999 was considered “half a war”.) The only Muslim majority State in the country, J&K has had serious law and order problems. It also enjoyed special status under Art. 370. Bharatiya Janata Party (BJP) for long held that such special status is untenable, and on August 5, 2019. The leader Narendra Modi government announced the abrogation of that Article. On October 31, 2019, the government further bifurcated the State into two Union Territories: J&K and Ladakh.

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While for some in India this decision was a cause for exultation, for others it turned out to be very contentious. The State was not consulted before the announcement. Its people never asked for such a division and in fact protested, and continue to protest, the unilateral decision to split the State (Tummala, 2020). It is important to note that while Art. 370 was abrogated, Art. 371 which confers special status on other States was left untouched. And, there is no dearth of other States demanding similar status from time to time.The decision on Art. 370 was thought by J&K leaders in particular to be abrupt, arbitrary and even punitive. All communications were cut off as protests started. It is noteworthy that this decision was against a majority Muslim State by a government which consistently pushes a Hindu agenda. What actually was the intent of the Modi government has not been explained except as an effort to deal with the poor law and order situation. It is worth noting that the delimitation process itself has become a controversy, for two reasons. First, there is a Constitutional office, the Electoral Commission (EC) with this responsibility. However, in this case, the EC was not brought in. Instead, an ad hoc three-­judge panel was constituted for the new delimitation. In its final report of March 2022, the panel recommended six new seats for Jammu and one for Kashmir, ostensibly to bring some parity between Jammu and Kashmir. Leaders of the State criticized that it would lead to a “political shift” towards Jammu, which would only be advantageous to BJP, and in all possibility, even probability, would allow it to form a future government. To recall some important facts, prior to the bifurcation of the State, of the total 87 electoral districts, Jammu had 37, Kashmir 46, and Ladakh 4. Twenty-­four seats also are set aside for “occupied” Kashmir (held by Pakistan) when (as is the hope) that might become part of J&K. The 2014 elections resulted in BJP capturing 25 of the 37 seats in the Hindu-­dominated Jammu. However, the Muslim majority Kashmir not only dominated politics in the State, but led to a feeling that the Hindu-­dominated Jammu was being treated like a stepchild. The new recommendations of shifting the electoral numbers are understood by leaders of J&K to offset the past and deny whatever advantage they enjoyed. The second pertained to the very timing of delimitation. While Prime Minister Modi and his Home Minister Shah decided on conducting this ­exercise in 2021, leaders of J&K wanted to wait till the elections are over, whenever they are conducted. But the government allowed the process to play out, as seen above. Moreover, while the nationwide delimitation exercise is due in 2026, why in 2021 in J&K, alone? As the opposition mounted, all former Chief Ministers of the erstwhile State were put under house arrest in early January 2022. The entire matter is before the Supreme Court, whose

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judgement is awaited. The dates for new elections are yet to be announced as of this writing (in early 2023). Governors and Lieutenant Governors

The roles of Governors in States, and Lieutenant (Lt). Governors in UTs, have garnered controversy ever since the beginning of independent India. But of late, the same attracted a great deal of criticism, and their relations vis-­à-­ vis the Chief Ministers became critical. This subject is here dealt with under several parts. Constitutional Provisions

In the Draft Constitution, the Constitutional Adviser, Rao, suggested that a Governor be elected by individual State legislatures for a four-­year term. There was considerable discussion in the Provincial Constitution Committee and the Union Constitutional Committee, and later in the Constituent Assembly itself (Shiva Rao, Vol. V: 382–401). At a joint meeting of the Provincial Constitution Committee and the Union Constitutional Committee on 7 June 1947, it was decided that the Governor shall not be appointed by the Centre, but elected by the Provinces. The Provincial Constitution Committee even decided on June 11th that the Governor be elected directly by the people in the Province for a four-­year term. After long discussions, the decision was left for the Constituent Assembly where further discussion ensued whether the Governors are to be elected or appointed and should any discretionary powers be given (in addition to the ceremonial functions as the nominal head of the State). While Nehru thought that electing a Governor would encourage “narrow, provincial way of thinking and functioning of each State, Alladi Krishnaswami Ayyar had much loftier (if not naïve) notions. He said: If the choice of the Governor was left to the President and his Cabinet, they might choose a person of undoubted ability and position in public life who at the same time had not been mixed up in provincial party struggles or factions; a person who was likely act as a ‘friend and a mediator’. Another member, Brajeshwar Prasad, already moved that the Governor be appointed by the President, and that was adopted. Fearing that an elected Governor might turn out to be a rival political power to the elected Chief Minister, the Drafting Committee changed it to empower the President to make the appointment for a five-­year term out of a panel of four suggested by the State legislature (Shiva Rao, Vol. III, 1967, p. 44, 564).

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Whether the Governor would have any discretionary powers, the discussion went in support of the position Ambedkar advocated that a Governor would only be an “ornament” – a mere symbol – and would be required to follow the advice of the Cabinet Ministers. That would make any discretionary power redundant. He did change his position later suggesting that “the retention in, or the vesting the Governor with, certain discretionary powers is in no sense contrary to, or in no sense a negation of, responsible government.” However, the final decision of the Assembly was to delete all reference to any discretionary powers for the Governor (except in a few cases such as tribal affairs, and the Emergency Powers). The Constitution as approved finally has Arts. 152–162 dealing with the position of Governor, while Art. 239 catered to the administration of UTs. While no definitions are provided in the Constitution, the First Schedule recognizes States and UTs. A note on UTs is, however, necessary here. Unlike a State, UTs are smaller in size (both territorially and population-­wise), may not be self-­sustaining in terms of revenues etc. and are under greater control of the Centre. They are headed by a Lt. Governor while each State is headed by a Governor. Both Governors and Lt. Governors are appointed by the President and serve at their “pleasure,” but serve a five-­year term, normally. In both cases, they serve as heads at the subnational level –somewhat of miniature officials compared with the President of India, serving symbolic/ ceremonial functions. As to the qualifications of a person to be appointed as Governor, the Constitution is silent except Art. 157 reads: “No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of thirty-­five years.” A stipulation followed (in the next Art.) that he shall not be a member of either House of Parliament or a legislative Assembly of a State, and should one holding such a position be appointed, they must resign from that legislative membership. The Governor is also not allowed to hold any “office of profit.” Dwelling on who could be a Governor, Nehru further explained in a rather convoluted, and even a rambling way, perhaps thinking aloud, when he stated in the Constituent Assembly on May 3, 1949 thus (quoted by Noorani, 2021, p. 74): ….He must be acceptable to the province, he must be acceptable to the government of the province and yet he must not be known to be part of the party machine of that province. He may be sometimes, possibly, a man from that province itself. We do not rule it out. But on the whole it probably would be desirable to have people from outside—eminent people, sometimes people have not taken too great a part in politics…there may be an eminent educationist or persons eminent in other walks of life, who would naturally while cooperating fully with the government and carrying out the policy of the government at any rate helping in

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every way so that policy might be carried out, he would nevertheless represent before the public someone slightly above the party and thereby in fact, helping that government more than if he was considered a part of the party machine. Despite the two criteria laid out – a Governor must be acceptable to the Chief Minister of the State and be from outside of the State to promote national integration – it did not take long after Nehru’s death to appoint several, flouting both criteria (Tummala, 1994, p. 77–78). Several were members of the Congress Party, which was in power at the Centre for long. Some even lost their positions as Chief Ministers of (other) States. Others were active Congress Party leaders such as P. Venkatasubbaiah who was posted as a Governor of Karnataka. Ram Dulari Singh, a sitting Congress Cabinet Minister at the Centre, was appointed as Governor of Kerala. It is noteworthy that both these States were controlled by Opposition Parties at that time. Ram Lal, against whom there were judicial strictures, was posted as Governor of Andhra Pradesh. At times, personal aides of the Prime Minister got to be Governors: Kumudben Joshi, during Prime Minister Indira Gandhi’s time was appointed as Governor of Andhra Pradesh. Former bureaucrats, retired high ranking army officers and Intelligence Chiefs joined the parade. Several were sprung as surprises to the State government with no knowledge of, much less consultation with, the Chief Minister. Later, a former Comptroller and Auditor General, whose reports on government expenditures went to the Public Accounts Committee of the Parliament which held the government’s feet to fire, also served in this role. Given this, the current BJP government of Prime Minister Modi using party membership and work within the party as a sort of litmus test shall not come in as a surprise. Yet, the irony is that it is used often, and openly. Of the Governors of the 28 States that the Modi government appointed, a quick internet search shows that there was one Lt. General, one Brigadier and one Indian Police Service official –all retired and show no political affiliation. The rest, besides whatever distinction they may have in whichever field, are known active workers/officials of BJP and/or RSS (Rashtriya Swayamsevak Sangh, which may actually claim parentage of BJP). One of these belonged to Arya Samaj (a more fundamentalist Hindu outfit). As to Lt. Governors, two are former bureaucrats (Indian Administrative Service –IAS, officers), one Admiral and one active BJP operative. The political nature of the conflict was highlighted when N. Ravi, a former Indian Police Service (IPS) official, was appointed as Governor of Tamil Nadu. The Chief Minister of the ruling party demanded that he be withdrawn. But the leader of the Opposition welcomed him. The relationship between the elected Chief Minister and an appointed Governor has been a bone of contention when the latter starts acting as an independent, even competing, source of power. This only becomes worse

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when a Governor is foisted over a State, without the consent of the Chief Minister, who also belongs to an Opposition Party. While the Governor is designated as the executive head of a State, Art. 163 reads thus: “There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions…” The convention is that the Governor does not take independent decisions on either the policies or the day-­to-­day administration of the State, that is, the business of the Chief Minister and the Cabinet who are elected by, and accountable to, the legislature. Ambedkar gave the final word, emphasizing that the primary duty of the Governor was to ensure the discharge of “good, efficient, honest administration”. He further went on to say: The first thing I would like the House to bear in mind is this. The Governor under the Constitution has no functions which he can discharge by himself: no functions at all…. Even under this article, the Governor is bound to accept the advice of the Ministry. Therefore, the criticism that has been made that this article somehow enables the Governor to interfere or to upset the decision of the Cabinet is entirely beside the point, and completely mistaken (quoted in Hegde, 2021, Emphasis added). Given that, minimally one would expect those who distinguished themselves in whatever endeavour, would be picked as Governors, and with the consent, at least the knowledge, of the Chief Minister. But that had not been so. Consequently, several Commission reports and Court rulings ensued. Commissions and Courts

There have been several Commissions and Supreme Court rulings in relation to Centre–State relations wherein the role of Governors is also considered. The subject is too complex even to provide a brief summary in a short chapter like this, hence the limited discussion covering the more important, and often cited, material. In the presence of numerous complaints by the States, particularly those controlled by Opposition Parties (other than those in power at the Centre), a Committee of Governors was appointed by the President on November 26, 1970, “to study and formulate norms and conventions governing the role of Governors under the Constitution.” Its report of 1971, like many others, did not get any traction and gathered dust. The most often quoted, however, is the 1983 Sarkaria Commission (after its Chairman, R. R. Sarkaria). It was given a much larger charge “to go into the question and recommend appropriate changes within the present constitutional framework” (Rath, 1984). Its report submitted in 1988, dealing with several aspects of federalism in India, ran into 1,579 pages. Noorani (2021) suggests that this Commission’s

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work pertaining to the Governor is rather shoddy, in that it did not even mention the 1971 report of the Committee of Governors, mentioned above. Nor even the 1979 Supreme Court decision on Raghukul Tilak’s case (see below) was cited. Yet, this Commission did make some observations on the office of the Governor. Contrary to the clamour of abolishing the position of the Governor altogether, the Commission recommended continuance of that position, but no active politicians shall be appointed as Governors. More importantly, when the State concerned and the Centre are governed by different political parties, the Governor shall not be from the ruling party at the Centre. After retiring as Governor, one should not be eligible for any other office of profit under the government. The Governor’s position is an independent Constitutional office, and thus cannot be “a subordinate or subservient agent” of the Centre, except that they would serve as an “agent” pertaining to those functions the Constitution requires and would be accountable to the President. The Chief Minister of the concerned State shall be consulted while making the appointment of a Governor and suggested to amend Art. 155 to that effect (which simply states that the President appoints the Governors). It is noteworthy that there were several other Committee/ commission reports, prior to and since the Sarkaria Commission, each critical of the political roles played by Governors, and none in support. In the 1979 Hargovind Pant vs. Dr. Raghukul Tilak decision, the Supreme Court said (quoting Noorani, 2021, p. 73): “It is no doubt true that the Governor is appointed by the President which means in effect and substance the Government of India, but that is only an employee or servant of the Government of India. Every person appointed by the President is not necessarily an employee of the Government of India. So also it is not material that the Governor holds office during the pleasure of the President. It is a Constitutional provision for determination of the term of office of the Governor and it does not make the Government of India an employer of the Governor.” The Court went further: “His office is not subordinate or subservient to the Government of India. He is not amenable to the directions of the Government of India, nor is he accountable to them for the manner in which he carried out his functions and ties. He is an independent constitutional office which is not subject to the control of the Government of India. He is constitutionally the Head of the State in whom is vested the executive power of the State and without whose assent there can be no legislation in exercise of the legislative power of the State.” But all of these dicta are honoured in the breach. Perhaps more irksome and controversial is the role of Governor in the exercise of Emergency Powers, in particular those conferred by Art. 356. It empowers the Governor to recommend to the Centre to dismiss the duly elected Chief Minister and take over the direct control of the State government when convinced that there was a breakdown of the State constitutional machinery. No criteria

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were mentioned as to what actually constitutes such a breakdown nor how the Governor would assess the situation. Thus, an appointed office could dispense with a duly elected head of government, which is a powerful tool in the hands of the former office. And, that tool was used and misused many times. That subject has been discussed extensively at other places (Tummala, 1992, 1994, 1997). For purposes of this chapter what actually is the political role, if any, of the Governor is important as it influences their behaviour. Behaviour of Governors and Lt. Governors vis-a-vis the Chief Ministers

It is not intended here to dwell on the experiences of all the States and UTs. Only certain glaring examples are discussed where the Governors and Lt. Governors took on overtly political roles, actually competing with, or even trying to negate the Chief Ministers. The State of Maharashtra stands out where the Governor, by forestalling legislative decisions in pursuit of partisan purposes, turned into a political hand-­ maiden of the government that appointed them. The State Assembly results were announced on October 24, 2019. Of the total 288 seats, the party strength showed thus: BJP 105, Congress 44, National Congress Party (NCP) 54, and Shiv Sena (Sena) 56. The rest were shared by other assorted small parties. Governor Bhagat Singh Koshyari called upon the leader of the majority BJP Devendra Fadnavis on November 9th to form the government and prove his majority in the Assembly within 48 hours. Fadnavis began consulting with Sena, which demanded that in return to their support its leader be given the position of Deputy Chief Minister. Fadnavis refused and informed the Governor the following day of his inability to form the government as he had no majority. The same day, the 10th, Sena was called upon by the Governor to form the government by giving it a 24-­hour window. Sena began talks with the NCP and Congress to cobble together a coalition and form the government. On November 11, Sena told the Governor that it had the requisite strength and asked for three days to get the support letters from the other parties. The Governor refused and declared President’s Rule under Art. 356 of the Constitution. On November 22, the Congress, NCP and Sena combinedly agreed on a coalition and announced that the leader of Sena, Uddhav Thackeray, would lead it as the Chief Minister. Instead, the following day, the Governor revoked President’s Rule and swore in Fadnavis as the Chief Minister, who in his turn resigned as he found himself without the support of the NCP (whose leader in the legislature was given the position of Deputy Chief Minister, but had to resign having come to grief within his party). Sena’s Thackeray was sworn in as Chief Minister on 28th and proved his strength in the Assembly the

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following day. The consequent discord between the Chief Minister and the Governor went so far as the former refusing the latter the use of government aircraft in February 2021. The forlorn Governor had to find private transportation. What are the underlying issues? First, did the Governor act hastily and showed partiality? He gave 48 hours to Fadnavis to prove his strength, but gave only 24 hours for Thackeray. Second, procedurally, under Art. 356, President’s Rule is declared after receiving a report from the Governor of the State that there is a breakdown of constitutional machinery. There were no signs of such a breakdown. Even if there was an administrative stalemate (there was not one), that would not come under the purview of Art. 356 to recommend President’s Rule. Third, the Emergency was lifted by the Governor as fast as he declared it, almost overnight. Fourth, such a cancellation of Emergency occurred under Rule 12 of the Government of India (Transaction of Business) Rules 1961 and not invoking the Constitution – something that was unprecedented. More notably, the Parliament was nowhere despite its constitutional role when an Emergency was declared under Art. 356. Prime Minister Modi and Home Minister Shah said nothing, leaving the impression that it was all supposed to have been the work of the Governor, acting independently. However, it is well-­known that Governors do not, and cannot, act on their own without consulting at least the Home Minister who controls the process. If indeed they did act independently, should it not be a reason to recall or dismiss the Governor? Compounding the sordid story, Sharad Pawar, leader of NCP, claimed that Prime Minister Modi wanted to work with him regarding the Maharashtra government formation and even offered a direct bribe of a berth in the Cabinet at the Centre to his daughter Supriya Sule (who is already a Member of Parliament). Sule repeated the story while thanking the Prime Minister for the offer which she did not take. Modi had not denied, but chose to be silent. To cite another incident of tension, the Maharashtra Government sent a list of legislators for nomination to the State Legislative Council, but Governor Koshyari did not act for nearly eight months, thus stalling the legislative process. A Public Interest Litigation (PIL) case – Ratan Soli Luth v. State of Maharashtra (2021) sought the help of Bombay High Court to end this impasse. Declaring that the seats in Legislative Council cannot be kept vacant indefinitely, the Court said the Governor has a constitutional obligation to decide on the government’s proposal within a reasonable period of time. The Court also clarified that the Governor is not answerable to it, but hoped that Koshyari will set things right as early as possible. It went on to suggest that should there be any differences between two constitutional authorities (i.e., the Governor and the Chief Minister), they must be made known to each other so that the differences be resolved. The Court did not stop with the suggestion but went on to admonish thus:

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It would not behove the dignity, prestige and majesty of the office of a constitutional authority/functionary to take shelter in absence of a time limit to act in terms of a provision of the constitution, so as to defend an inaction when it is challenged in a constitutional court. All such ­constitutional authorities/functionaries, whichever office they are adorning, ought to stand tall and, while rising above all differences of opinion, arrive at a workable solution as quickly as possible. It is with the prompt and e­ ffective resolution of differences of opinion to take the nation forward that the respective incumbents would glorify the offices they hold, and not otherwise. As it so happened, several members of Sena left the party led by Eknath Shinde, a Sena rebel, and Thackeray’s government fell. Shinde, with the support of BJP, became Chief Minister in July 2022, with the BJP leader, Fadnavis, as his Deputy. Not unexpectedly, Thackeray criticized that the defection was engineered by BJP at the Centre. In fact, the BJP leader Fadnavis was to be the Chief Minister, but fearing the optics, he was allowed to take the Deputy’s slot. Each of the groups led by Thackeray and Shinde claimed to be the original Sena and requested the EC that it be allotted the previous election symbol to it. Faced with a sort of King Solomon’s dilemma, the EC did the reverse; it gave separate symbols to each. A similar contest of wills had been going on between the Trinamool Congress (TMC) party Chief Minister Mamata Banerjee of West Bengal and Governor Jagdeep Dhankar – a committed BJP person. The bitterness led Governor Dhankar (2021) to claim that he was not being consulted, not even in the appointments of University Vice Chancellors (VCs), given that he is the ex officio Chancellor. The Governor openly declared that the State was “a gas chamber for democracy.” Notwithstanding his complaints, the Governor apparently was oblivious of ground realities. Despite Prime Minister Modi and Home Minister Shah pouring large resources and investing a lot of their own political capital to unseat Chief Minister Mamata Banerjee of West Bengal in the 2021 elections, she garnered 213 seats out of a total of 292. Regardless of whether one likes her policies, or her as a person, her electors trusted her with a near two-­thirds majority. She rules and even is projected as a probable contender to national office. That by any definition is democracy. Asserting such power, Bannerjee went on to suggest a new legislation denuding the Governor of his position as Chancellor and the Chief Minister being invested with that office. Matters came to rest when Dhankar was put up by the Modi government as a candidate for the office of Vice President of India. He was elected, not unexpectedly given the log-­rolling majority BJP commands, and is out of West Bengal. La Ganesan Iyer, Governor of Manipur, was given additional charge as Governor of West Bengal. Cordiality returned when the Governor invited,

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and Bannerjee attended, his brother’s 80th birthday celebrations in Tamil Nadu. Some calm seems to have taken hold in West Bengal. Later, a former bureaucrat was appointed as Governor of the State. The contest between Governor as ex officio Chancellor and the Chief Minister is seen in other States, all of which are controlled by regional parties opposed to the BJP government at Centre. Mention has already been made of the appointment of Governor Ravi in Tamil Nadu, which was contested by Chief Minister M. K. Stalin. This issue had boiled over to the point that the Stalin government had petitioned the President that the Governor be recalled. But the worst-­case scenario has been playing out in the State of Kerala between the Left Democratic Front (LDF) government of Chief Minister Pinarayi Vijayan (of Communist Party of India – CPI, Marxist), and Governor Arif Mohammad Khan. They have been at loggerheads on several issues, but two of them took centre-­stage. The first started with the re-­appointment in November 2021 of Gopinath Ravindran, a known LDF supporter, as VC of Kannur University. Governor Khan resisted, and even called Ravindran a “criminal.” It was not the case of one appointment but the management of 13 different Universities which came into focus. The Vijayan government wanted to altogether divest the power of the Governor as Chancellor in the appointment of VCs. The government banked its argument on the recommendations of the 2007 M. M. Punch Committee which was appointed to study Centre-­State relations. That Committee not only recommended that the Governors act independent of any political considerations, but also they be not burdened with the addition of being Chancellors, which might divert their attention from the exercise of other constitutional functions. The government further argued that it was the State Assembly that created the office of Chancellor and thus can end that office. Following that logic, the government on November 9, 2022, passed an ordinance removing the Governor as Chancellor and sent it to the Governor for his signature. He did not oblige, as expected. The government seems to be ready to pass a law, instead. If it succeeds, the issue would still remain as such legislation requires the signature of the Governor, which may not come. Two latest Supreme Court decisions are very instructive as to the appointment of VCs. The first decision as reported by Yadav (2022) voided the appointment of a VC of a University in Kerala as only one name was forwarded, which is contrary to Section 13 (4) of the (AJP Abdul Kalam Technological) University Act, 2015 stipulating that the appointment must be out of a panel of no less than three candidates. The second set aside another appointment citing Section 10 (3) of University Act, 2019 (amending Central University Act of 2009) which laid down that to be appointed as VC, a candidate must have taught as a Professor for 10 years. Advising research scholars while on deputation to another non-­teaching position would not count. These have been norms set by the University Grants Commission

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(UGC) which is the national apex body governing the conditions of institutions of higher learning institutions. The second issue stems out of a proposition by Governor Khan (Jacob, 2022). He considered a speech made by Kerala Finance Minister K. N. Balagopal to be offensive to his office. The Governor read that as Art 164 (1) of the Constitution stipulates that a government serves at the “pleasure” of the Governor, it is his right to deny that pleasure. Accordingly, Governor Khan wrote to the Chief Minister thus: “A minister who deliberately violates the oath of office and undermines the unity and integrity of India cannot continue to enjoy my pleasure. In these circumstances, I am left with no option but to convey that Balagopal has ceased to enjoy my pleasure. I hope you will consider the matter with the seriousness it deserves and take action which is constitutionally appropriate” (that is, fire the Finance Minister.) The Chief Minister, in his turn, said that he has full faith in his Finance Minister. This claim that the Governor has the authority to remove a minister out of the Chief Minister’s Cabinet is novel and unprecedented. The Constitution prescribes that a governor acts on the aid and advice of the Chief Minister and his Cabinet! It is for the Chief Minister to decide who would be a member of the Cabinet. It is noteworthy that the Legal Advisor to the government and the Standing Counsel of the Chancellor of University resigned in November 2022, with a cryptic explanation that their reasons (for resignation) are known to the government and the Governor, without spelling them out. There was a rather bizarre case of Jyoti Prasad Rajkhova, who was the very first former IAS officer to be appointed as Governor by the Modi government. He was posted as Governor to the State of Arunachal Pradesh, while it was under the control of the Congress Party. He dismissed that government which approached the Supreme Court challenging the decision. The Court on July 13, 2016, restored that government back to power. The Governor returned to his office after over 40 days as he was sick. In the meanwhile, the government censured him and sought his dismissal. He was defiant, claiming that his term of office is for five years, and he would leave office only when the President dismissed him using the provision of Art. 156 which, as seen above, stipulates that a Governor holds office at the pleasure of the President. President Pranab Mukherjee did indeed sack him in September 2016. Governor Satya Pal Malik in Meghalaya, a BJP person himself, is a curious case in that he went on record criticizing the Modi government. He appears to be a loose cannon and has been known for making clearly outlandish political statements. His claims include (Dutta, 2021) that he was moved out of J&K as Governor as he refused to clear some files because he thought they were graft-­ridden. In March 2021 this year, he held a rally in Baghpat in Uttar Pradesh, his home State, to voice staunch opposition to how the Modi government handled the farmers’ protest over the three farm bills passed by Parliament in 2020, since repealed in 2021, after succumbing to a year-­long

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farmers’ agitation and conceding all their demands. Mailk served so far four years, and once his term of five years ends what would be his fate, and future role in BJP, is anyone’s guess. Time is to turn attention to UTs and Lt. Governors. Under Article 239A, Puducherry is a UT, and Parliament is empowered to create a legislature, whether elected, or partly nominated and partly elected. From that body, as is the custom, a Council of Ministers will be formed. Accordingly, this UT has a legislative Assembly of 33 members, three of whom are nominated. It had a Congress government under Chief Minister Velu Narayansamy. Kiran Bedi was named as the Lt. Governor. Narayansamy, supported by another party (DMK), had a strength of 19. When some Congress party legislators, who were supporting the Chief Minister, quit the Assembly in 2021 for whatever reasons, the Chief Minister was left with a strength of 14 in a House of 30. As he was late in filling the three nominated member slots, the Lt. Governor took upon herself to nominate three BJP loyalists. Consequently, the Opposition called for a no-­confidence motion. Seeing the writing on the wall, the Chief Minister walked out of the legislature, and the Speaker declared that he lost power. President’s rule was imposed on Puducherry using Art. 356. Bedi is the first woman to be selected to the Indian Police Service, after a nation-­ wide competitive examination/selection process. On retirement, she joined BJP and was given sort of a special status in the party, including being seated along with other dignitaries at the Republic Day parade in New Delhi, (No other Governor or Lt. Governor was accorded that privilege). As Lt. Governor of Puducherry, given that she belonged to the party controlled by the Centre, she came with some not so covert opposition to Congress-­ led Narayansamy government. The Chief Minister went on complaining that she was running a parallel government, when her position was only a ceremonial figure, albeit UTs are under greater control of the Centre. For example, the Narayansamy government wanted to implement, gradually, the wearing of helmets by drivers operating scooters and motorcycles. Instead, Bedi declared such a policy forthwith and even announced that the vehicles operated by helmetless drivers should be seized. This displeased the government as well as the general public, only compounding the criticism that she was not only encroaching upon the authority of the Chief Minister but also behaving in an authoritarian way, and with some impunity for which Indian Police are known and criticized. Narayansamy called on the President of India with a petition that she be removed. The Assembly elections were due in March 2019, and the conflict became apparently severe. Surprising everyone, the President did remove her from office on February 17, 2019. The removal was seen not because of the pressure from the Chief Minister, but to deny the Congress a reason to complain about her behaviour and thus the possibility of making political/electoral capital. As it so happened, the BJP returned to power in a coalition government, with the Governor of Telangana (whose Chief Minister was not even on

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speaking terms with the Governor) holding additional charge of this UT. Delhi, since the passage of the 69th Amendment to the Constitution in 1991, came to be known as the National Capital Territory of Delhi (NCTD). But it is neither a fish nor a fowl. It is a State with a legislative Assembly and Chief Minister, but has a Lt. Governor as its head. Article 239AA (c) allows Parliament to control all matters relating to the functioning of the legislature. BJP, while controlling the Centre, captured all the seven Delhi Parliamentary (MP) seats in the 2019 elections. However, in the 2020 Assembly elections, Aam Aadmi Party headed by Arvind Kejriwal captured 62 of the total 70 Assembly seats. Not unexpectedly, there had been continuous tussles between Chief Minister Kejriwal and the Lt. Governor, be it Anil Baijal or Najeeb Jung, to the point where Kejriwal openly said that the Centre was trying to govern Delhi by proxy through the office of their appointee, the Lt. Governor. The Chief Minister even challenged the powers of the Lt. Governor in the courts. While the High Court favoured the Lt. Governor, the Supreme Court (2017) reversed and stated that the Lt. Governor has no independent powers, but follows the advice given by the Council of Ministers. The Home Ministry, in its turn, at the Centre clarified that matters pertaining to Police, Public Order and Land are the domain of Parliament, implying that the Lt. Governor controls these areas. Claiming that a clarification is needed in terms of the power structure in NCTD, the BJP government put a Bill through Parliament. The President on March 29, 2021, signed the Government of National Capital Territory of Delhi (GNCTD) (Amendment) Act which shifted power towards the Lt. Governor, at the expense of the Chief Minister. Critics began arguing that the Amendment actually was meant to define that “Lieutenant Governor Means Delhi Government” (Shah, 2021). Conclusion

The above analysis yields the following insights. (1) The foremost challenge is whether Appleby’s remark that India is extremely federal, and the often used expression of “cooperative federalism,” are apt now. Or, is it “federalism in conflict”? His doubts as to what might happen when competing parties are in power at the States and Centre are apparently well-­founded. (2) Art. 3 can be turned into an existential threat to a State ruled by an Opposition Party with a powerful government at the Centre intending to extend its own domain, or influence. A determined Prime Minister and the Cabinet can resolve to actually dismember a State by an acquiescing Parliament in which the government has a log-­rolling majority. (3) The very fears that a directly elected Governor might constitute a political threat as a competing power centre have come true even in the case of an

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appointed Governor, belying the hopes of the Constituent Assembly which drafted the Constitution, as opposed to the original recommendation of the Constitutional Consultant, Rao. (4) A government at the Centre, intent on bringing down, or at least cow down, a government at the State controlled by an Opposition Party (or Parties) need not do anything more subversive than appoint someone of their own such as Governor, willing and ready to act as an “agent” of the Centre. It is all legal, and the Constitution is not even touched, much less violated. Ambedkar (1948) was very prescient when in his infinite wisdom he observed during the debates in the Constituent Assembly thus: “It is perfectly possible to pervert the Constitution without changing its form by merely changing the form of administration.” (5) Rescue institutions of higher learning from the political battles between the Governors and Chief Ministers and find prominent academics to run them as VCs. It is sad to see that academicians are being turned into political pawns. And worse, academicians figured out that the easiest way to get the top job to head a University is to toe the government line, be it at State levels, or at the Centre. The need is to cultivate the ethos that political affiliation is not a litmus test for appointments to these positions, but it is academic excellence alone that matters. (6) All the political turmoil caused by an appointed Governor locking heads with the elected Chief Minister of a State, let alone the expense involved in maintaining that seemingly symbolic office, leads to the fundamental question whether the office of the Governor is worth it. Cannot someone like the Speaker, or even the Chief Minister, manage the State government? True such a dispensation might lead to greater politicization. But at least they can be held responsible by an electorate that put them in office in the first place and can kick them out the next election cycle. And politicization could not be any worse than the deadlock that has come to be so often under the current dispensation. (7) That the Centre can flex its political muscle is already seen by the very powerful revenue resources it controls. It has become so blatant that during election time, it is commonly heard the Centre promising, nay threatening, that they be elected at the State level too so that they can pour in the resources. The implied threat is that otherwise they might starve the State, illegal as it is. (8) Sadly, the national unity that drove the Constituent Assembly members in adopting the several provisions actually is driving further disunity and disruption. While indeed, governments both at the States’ level and at the Centre were to belong to the same party, or parties, it might facilitate uniform development, and unity, as the argument goes. But, might it also lead to a deterioration into an autocracy – a single party totalitarian rule, which threatens the very democratic credentials? Indeed, democracy is a

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messy system. But that does not, and should not, lead to an argument for an autocracy, more so when a party is wedded to religious nationalism, which might result in a theocracy. Thus, this might be time to think carefully how to make the Constitution work as it was intended to. To paraphrase Woodrow Wilson (1887), it is easy to draft a Constitution. Running it is an altogether different equation. Notes 1 “State” recognizes the sub-­national unit of government, whereas “state” is used in the generic sense. Similarly, “Parliament” refers to Indian Parliament as an institution, and “parliament” to the process. “Opposition” suggests the opposition parties in Parliament, whereas “opposition” is used in the sense of opposing the government. 2 This Report itself was made in 1953, but published in 1957. This is the first of two reports by Appleby, the second being, Re-examination of India’s Administrative System with Special Reference to Administration of Government’s Industrial and Commercial Enterprises (New Delhi: Cabinet Secretariat, Government of India, 1956).

References Alexandrowicx, C. H. (1957). Constitutional Developments in India. Bombay: Oxford University Press. Ambedkar, B. R. (December 7–8, 1948). Constituent Assembly Debates, Vol. VII, p. 38. Appleby, Paul H. (1957). Public Administration in India: Report of a Survey. New Delhi: Cabinet Secretariat, Government of India. Austin, Granville (1966). The Indian Constitution London: Oxford University Press. Dicey, A. V. (1960). Introduction to the Study of the Law of the Constitution. London: Macmillan & Co. Ltd. Dutta, Prabhash K. (October 27, 2021). indiatoday.in Hegde, Sanjay (March 26, 2021). “Governors doing the Centre’s bidding,” Frontline, 28. Gaus, John M. (1947). Reflections on Public Administration. Tuscaloosa, Al: University of Alabama Press. Hargovind Pant vs. Dr. RaghukulTilak, AIR1979SC709. Jacob, Jeemon (October 27, 2022). https://www.indiatoday.in/india-­today-­insight/story/ why-­k erala-­g overnor-­w ants-­a ction-­a gainst-­p inarayis-­m inister-­k n-­b alagopal-­ 2290180-­2022-­10-­27 Jowett, Benjamin (1937). trans. Plato, Republic, Book VIII: 544. New York: Random House. Noorani, A. G. (July 2, 2021). “Governor, A Colonial Legacy”, Frontline, 72–74. Ratan Soli Luth v. State of Maharashtra (2021). PIL (L) –10300, https://thewire.in/ law/bombay-­h igh-­C ourt-­g overnor-­a ccept-­o r-­r eturn-­m inistry’s-­a dvicewithin-­ reasonable-­time Rath, Sahrada (1984). Federalism Today: Approaches, Issues and Trends. New Delhi: Sterling Publishers Private Limited.

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Shah, Jinali (April 1, 2021). “Lieutenant Governor Means Government of Delhi”. https://www.lawyersclubindia.com/articles/-lieutenant-­g overnor-­t he-­d elhi-­ government-­as-­per-­the-­new-­gnctd-­amendment-­bill-­2021-­13805.asp Shiva Rao, B. Framing of India’s Constitution. New Delhi: Indian Institute of Public Administration. Vol. III, 1967; Vol. IV, 1968; Vol. V, 1968. Supreme Court (November 10, 2017) Case No. A2357. thehindu.com Tummala, Krishna K. (1979). The Ambiguity of Ideology and Administrative Reforms. New Delhi: Allied Publishers. Chapter V. Tummala, Krishna K. (March 1986). “Democracy Triumphant in India,” Asian Survey XXVI, No. 3, 378–395. ——— (June 1992). “India’s Federalism Under Stress,” Asian Survey XXXII, No. 6, 538–553. ——— (June 1994). Public Administration in India. Singapore: Times Publication. Chapter IV. ——— (December 1997). “Politics of Decentralization in India: An Analysis of Recent Developments,” Asian Journal of Political Science 5, No. 2. 49–64. ——— (August 2007). “Developments in Indian Federalism: 2005–2007,” Asian Journal of Political Science 15, No. 2. 139–160. ——— (August 2013). “Can India Curb Corruption?” in Jon S. T. Quah, ed. Different Paths to Curb Corruption: Lessons from Denmark, Finland, Hong Kong, New Zealand, and Singapore. Bingley, UK. Emerald. 167–187. ——— (August(2020). “Constitutional Corruption: An Analysis of Two Bharatiya Janata Party Scandals,” Public Administration and Policy 23, No. 1. 23–31. ——— (August 2021). “India’s Continuing Fight Against Corruption,” in his edited, Corruption in the Public Sector: An International Perspective. Bling, UK: Emerald Publishers. ——— (January 2022). “Fred W. Riggs: The Man, His Ideas and Relevance in the Contemporary World,” Journal of Governance, Security & Development 2, No. 2. 85–101. Wheare, K. C. (1953). Federal Government. London: Oxford University Press. 28. Wilson, Woodrow (June 1887). Political Science Quarterly 2. Yadav, Danita (October 21, 2022). thetimesnews.com

5 CIVIL SOCIETY AND COOPERATIVE FEDERALISM IN INDIA The Need for a Conceptual Enquiry G. Gopa Kumar

Conceptual Background

Debate on federalism has a long history in the mainstream literature of political science and constituted an evergreen branch in the subdiscipline of comparative political studies. Although, as a branch of study, federalism became popular only since the 17th century, the dimensions of federalism and its consequences became vibrant in the subject theme, leading to its influence in the social science areas of history, economics, public administration, public policy studies, law and jurisprudence, anthropology and sociology. Today, more than 28 nations and 40% of the world population are under federal governance of some sort or other. Federal systems are often compared to an arch dam with either centripetal and centrifugal forces or a combination of both. Basically, federalism abhors concentration of powers and subscribes to a philosophy of sharing and shaping powers across regions and governments. Formally, federalism provides a political mechanism that links multiple governments with a national government. Improvement in federal administration has come in several respects – constitutional division of powers between national and provincial governments, decentralisation of powers between various structures of government, devolution of powers to lower bodies, increase in the role of state governments, space enjoyed by the civil society groups and non-­governmental bodies, judicial review functions and judicial activism of the Court etc. Federalism can also be considered as a mechanism and process in which the powers and functions are distributed in such a form that each organ is trying to maximise its services to the people. Therefore, public welfare and people are at the centre and conceptually all governments, through its DOI: 10.4324/9781003461197-8

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functions, are competing to maximise its services to the people. It is a continuous process which can become more effective in a democracy, rather than in any other form of government. The items or subjects in a federal system can proliferate over the years, but the significant aspect is that these are expected to be subdivided across various governments and its agencies in the political system. Therefore, federal systems are always in motion and cannot remain static. It is dynamic and change oriented. Just as the elements of centralisation operate to become more stronger, the opposite can also be true. That is why, it is considered that federalism is always in flux, mobility and movement. As politics evolve, the contours of the constitutional and legal dynamics also undergo change. This is true of all federal systems, and it produces an equilibrium. Noted scholar Daniel J. Elazar highlighted the capacity of various federal systems in the world in shaping and sharing of powers. Federalism combines partial self-­government and partial shared governments (Elazar, 1987 & Bulmer, 2017, p.3). Devolution of powers or providing more autonomy, instead of promoting separatist movement, was also found pertinent by John Kincaid, quoting the experiences of Scotland, Canada and Catalonia (Kincaid, 2014). The Soviet political system collapsed in December 1991 because of the concentration of powers in the Communist Party. Federalism has emerged as one of the potential instruments for effective governance in modern political systems. It has been found extremely useful for large, diverse and complex political systems across the world. It has expanded the dimensions of democracy by deepening it further at the vertical and horizontal levels of the political systems. Today, countries like the USA, India, Canada, Australia, South Africa, Brazil, Mexico, Nigeria, New Zealand and many other nations are following it, although with some with some variations regarding structure and balancing acts of centripetal and centrifugal elements. Unitary countries like the United Kingdom, Spain, Italy and Japan are seriously thinking of introducing federal provisions in their countries. This is especially true after regions like Scotland, Wales and Ireland have demanded self-­rule or autonomy and sometimes independence from the United Kingdom. The deficit of federal features has destroyed unity and integration in small but ethnically diverse countries like Sri Lanka, the Irish Republic and Afghanistan. Therefore, the possibilities of more and more countries transforming to federal systems in future cannot be ruled out. Indeed, the evolution of Confederacies to federal systems like the USA (1776–1789) has been well-­explained in the history and political process, while small systems like Switzerland survive on a well-­tested mechanism of Confederation. Today, the US federal system is regarded as a classical federal system where states are vested with more powers. While colonial India was getting ready to obtain freedom from Britain, there was a discussion and plan

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to transform the entire Indian subcontinent to a loose federation and to keep the regions strong at the expense of a weak Centre. However, this idea of few political elites did not realise because of the political and pragmatic reasons and the flow of major political developments since 1946 that finally led to the Partition of the subcontinent. Of course, today there are few examples of confederated systems like the European Union, Commonwealth of Independent States, the Gulf Cooperation Council and the tiny Confederation of Switzerland. Contrary to confederated systems, most of the federations try to work out a balance between structures functioning at various levels. Herein lies the significance of cooperation between and among subregional, regional and national governments. Therefore, in practice, a federation is more than a twin-­government or a contract between two governments that arrived at some point of history. Obviously, the Constitution serves as the ultimate source and the judiciary, guarantee of all the federal arrangements. Statement of the Problem

This chapter attempts to argue that cooperative federalism in India has a long way to go in ensuring harmony between national and state governments and further developing smooth liaison and equilibrium between state and local governments. The experience and slow growth of the Inter State Council (Article 263) is a testimony before us. Secondly, the sluggish growth of civil society is another major limitation that constrains the efficacy of cooperation in federal management. Historically, India suffered from establishing a civil society due to foreign conquests, occupation, colonial administration and disunity. Instead, traditional society played its paramount nature and influence in all walks of life. This has led to unprecedented growth of atavistic elements and contributed negatively to the rise of a tolerant, pluralist society. With the arrival of democracy, their influence spread across all areas of socio-­ political and cultural life. The rise of vote bank politics and related political culture is a product of these developments. Consequently, the agenda of strengthening a civil society was pushed under the carpet except in some urban areas. Citizen identities and expressions are camouflaged by vocal, traditional identities and politics. Policy-­making has been conditioned by these factors to a great extent. The growing influence of religion, caste, subcaste, ethnicity, language and the pressure it exerts in contemporary politics is a widely known political reality. On the whole, the inability of shaping a strong civil society leads to several friction points and hampers the process of cooperation among various governments functioning at regional levels. Instances of these can be seen extensively especially in inter-­state disputes of various kinds – river water sharing, border tensions, movement of smugglers, drug control and narcotics, employment-­and residence-­ related issues of

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inter-­state migrants and regional impact of health in the context of pandemic or in crisis management. No state is free from these aspects, and the Union Government cannot ignore the developments. Only when a strong citizen identity with due regard to the nation and its parts is simultaneously developed, chauvinistic elements can be eliminated. Herein lies the significance of evolving and nurturing a vibrant civil society that is so much pertinent to potential development of cooperative federalism in India. After all, the real fruits of cooperative federalism lie in sharing, mutual exchange, and give and take of various kinds that are vital to human and environmental development, whereas an extension of legal provisions simply won’t suffice. In other words, it has to be beyond the simple dimensions of legal federalism. Given the normative impact of tradition, the effort to establish or evolve a strong civil society is not an easy task. Landscape and Complexities of Indian Federalism

According to Louise Tillin, the Centre-­state entanglements in the welfare field reflect the deliberate choices of the architects of the Indian Constitution. He argues that the centralisation tendencies in the Indian Constitution were the result of two factors – historical and political economy aspects. While the need for a centralised government was a historical necessity on the eve of the finalisation of the Constitution, delivery and implementation of welfare policies also justified the need for a strong national government, unlike the experiences of the US or Canadian models of federations (Tillin & Scrollin, January 28, 2022). One of the basic inbuilt tendencies that resulted in the conflicting posture in Indian Federalism is the amalgamation of federal features with parliamentary democracy. M.P. Singh had rightly put the Indian situation as parliamentary federal (M.P. Singh, 2002, p.553). Like Canada, India also developed a parliamentary– party system across the nation and with variations at the regional level. If Canada was able to manage initially with a two-­party system, ultimately, it evolved ethnic cleavages based on French identities, leading to a strong regional force led by the Quebecois National Party (QNP). The QNP was challenged by the Anglophone tradition. In other words, the party system initially moved towards a two-­plus party system between the Conservatives and the Liberals, but the presence of Francophone politics has made the political process more complex. Canada held two national referendums to decide on the future of Quebec question, in 1980 and 1996, but ultimately the Unionists won. Nevertheless, Quebec’s political activism provides sufficient challenges to Canadian federalism and further to a competitive politics between Anglophone and Francophone leaders in an emerging multicultural society. The near -uniform economic growth across the regions and

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the persistent multicultural policies since 1971 is expected to minimise the tension areas. However, this dimension has to be viewed particularly from a traditional bi-­polar setting. The Francophone posture to the continued ethnic cleavages has not yet disappeared. Whereas in India, the situation is much more complex, given our history of integration of Indian states on the eve of Partition, diverse nature of the society, uneven regional divide and limited economic growth in a complex, over-­populated society. The Kashmir issue, growth of regional parties with religious, caste and ethnic character and slow growth of decentralisation measures are to be taken into account seriously. The protest politics against centralisation of powers has ultimately resulted in the decline and phasing out of one-­ party dominance in a non-­ authoritarian setting. While Rajni Kothari (1965) formulated the theory of Congress System, he was confident about the prevalence of the strong regional politics inside the Congress party, which by itself was providing an intra-­ party federal culture. But many regional forces emerged across the national spectrum, mostly in the post-­ 1967 period, mostly against the centralisation tendencies of Congress leadership. Tillen argues that the period 1989–2014 witnessed the peak of regional politics in India. The trend could be reversed only with the rise of the BJP at the national and state levels. Coalition politics emerged as an off-­shoot to drive the mechanism initially against the Congress party but subsequently against the growing strength of the BJP as well. Consequently, the one-­party dominant system disappeared, leading to a multiparty system with the strong presence of the Bharatiya Janata Party at the national and regional levels along with the growth of regional and smaller parties (and few national parties) at the state level. The sociology of regional and smaller parties and few national parties is really baffling. It has many dimensions like ethnicity, culture, subculture, ideology, caste, religion, race and language. Naturally, it has its impact in the operational dynamics of federalism. The parties include the All India Trinamool Congress, All India Forward Block in West Bengal, Dravida Munnetra Kazhagam and All India Anna Dravida Munnetra Kazhagam in Tamil Nadu; Telangana Rashtra Samithi in Telangana and Andhra Pradesh, Telugu Desam Party and YSR Congress Party in Andhra Pradesh and Telangana; Shiromani Akali Dal in Punjab; Aam Aadmi Party in Delhi, Punjab, Goa and Gujarat; Shiv Sena and Nationalist Congress Party in Maharashtra; CPI(M)and CPI in Kerala and Tripura; Rashtriya Lok Dal in Bihar; Indian National Lok Dal in Haryana; Samajwadi Party and Bahujan Samaj Party in Uttar Pradesh; Janata Dal (S) in Karnataka, Arunachal Pradesh and Kerala; Janata Dal (United) in Bihar, Kerala and Arunachal Pradesh; Lok Janshakti Party in Bihar; Asom Gana Parishad and Bodoland People’s Front in Assam; Biju Janata Dal in Odisha; Jammu and Kashmir National Conference and Jammu and Kashmir People Democratic Party in Jammu and

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Kashmir; the Indian Union Muslim League, Kerala Congress(M), Kerala Congress (J), Revolutionary Socialist Party in Kerala, Mizoram National Front and Mizoram Peoples Conference in Mizoram; and many smaller and splinter parties in North Eastern states and other parts of India. While coalition politics became the lifeboat strategy for all parties in parliamentary politics, it was devoid of any sound ideology or federal principles. Expediency in winning more Parliament/Assembly seats and thereby capturing or sharing power became the main objective for political parties. It created confusion among the voters since they found contradictory alliances and signals across various states. But this eventually led to some federal principle and pattern as the voters found the utility of supporting one alliance/party for state politics and another alliance for national politics. To this extent, ticket-­splitting voting patterns benefitted the growth of federal political culture. But when it comes to other aspects like sharing of the national resources to the different regions for development, narrow party political preferences emerged. This included features like unhealthy pressure politics, bargaining political culture and blackmailing potential of smaller-­and medium-­sized parties. Therefore, we found considerable party politics in the decision-­ making process of the erstwhile Planning Commission and the present Niti Aayog. This dimension was also seen in the deliberations of the Inter-­State Council, the National Development Council and the National Integration Council. Indeed, the Centre–State relations constitute the core of the Indian federal discourse. Originally, the Constitution provides for a dual polity; Centre and State governments. But unlike the American Constitution, Indian states were not sovereign systems prior to Independence. Therefore, despite Article 1, “India, that is Bharat, shall be a Union of States”, the federal system has imbibed several limitations. New states can be created, and the size of the existing one changed by the powers vested in the Rajya Sabha (Council of States). Again, the composition of the Upper House is based on the population criteria, and there is no equality among the states. Moreover, the constitutional provisions, needless to say, has provided considerable strength to the Union Government through the Parliamentary powers it enjoy (Article 245–263). As per schedule VII, the Union List consists of 99 items, State List with 61 items and Concurrent List with 52 items. Perhaps, no other country has given such vast scope for Concurrent List in their Constitution. Further, the residuary powers (Article 248) are vested with the Union Parliament. Not only that, any item in the State List can be brought into the Concurrent List as per Article 246 and 249 of the Constitution. In 1976, Education was removed from the State List and shifted to the Concurrent List. Many of the functions that the State governments are expected to perform like the Health, Police, Prison, Forests, Housing, state highways and roads have significant national/federal dimensions and for all practical purposes, it cannot remain exclusively as a State Subject. For a

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developing country like India, this process of horizontal expansion of federal functions may be unavoidable in its trajectory of socio-­economic and physical development. Perhaps, one of the basic factors that constrained the weak development of the Inter-­State Council (Article 263) was the intense party politics which threw a hammer in the federal canvass. The ISC formally came into being in 1990 only, despite its constitutional provision since 1950, and was put into oblivion during the 1991–1998 period. It was revived in 1998, but so far, the ISC could not emerge as a strong pillar in the growth of the co-­operative federalism. Now the ISC has a formal, new life with a structure, composition and avenues for meetings. Ideally, the ISC will be more useful than the National Development Council or similar other bodies. Its potential lies in expanding the Centre–State relations and Inter-­State relations. Yet, the institutionalisation of the ISC has not taken place properly. Therefore, the Secretariat has to be organised better to ensure the effective running of the Council. Another problem is that the meetings of the Council are not taking place frequently. Finally, the State governments, irrespective of party/coalition affiliation, should strive for strengthening the ISC, which in turn benefits the whole country. This amplifies the institutional limitations of our federalism. Justice R.S. Sarkaria Commission (1983–1988) emphasised the importance of guaranteeing federal values especially in the matter of Centre–State relations (the Commission offered 247 recommendations and most of it was related to the improvement of Centre–State relations). The Commission highlighted that Article 356 remains as one of the most frequently used articles in the Indian Constitution. It found that the misuse for political purposes was as high as two-­third occasion and can be justified only for one-­third occasion. Even after the publication of the Report, the controversy continued. Later, the S.R. Bommai Case judgement (1994) emerged as a turning point in the controversy. Similarly, the Justice M.M. Punchhi Commission was appointed in 2007 by the Government of India to study Centre–State relations. It submitted its Report in 2010 with 312 recommendations. However, very few follow-­up actions were taken up. The political misuse of Article 356 had a long history although the Constituent Assembly Debates produced a clear perspective. It was resolved in the Constituent Assembly that the provision will be used only in exceptional cases, perhaps as a last resort. Dr. B.R. Ambedkar rightly argued in the Constituent Assembly that in the event of a compulsion of invoking Article 356 arises in a state, the first duty of the Union Government will be to warn the state government in advance. If not effective, he suggested a fresh election. The final resort shall be to recommend the dismissal of the State government. But in the history of free India, we had seen this provision used mostly in a controversial manner – initially against a Congress Government in

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PEPSU (1953) and then against the first non-­Congress government, led by the Communist Party of India (1959) in Kerala State. Thereafter, we saw the frequent instances of the provision being invoked by the Union Government. Altogether, the imposition of Article 356 was done 133 times in 73 years, making it a vital and sensitive provision in constitutional development. Of the 28 states, only Telangana and Chhattisgarh remained aloof from attracting President’s rule so far, while States like Punjab, UP, Bihar, Kerala and UT of Pondicherry tops in the number of impositions of Article 356. Despite the media criticism and the findings of Sarkaria Commission and many conclaves conducted by the non-­Congress Opposition parties, the provision remained more political in our federal history. Neither the Congress nor the Janata Party/Janata Dal or the BJP-­led government at the Centre can claim any perfection in this regard. All the governments are culpable in the misuse of Article 356 against State governments. The Constitution (1950) has clearly demarcated various powers of the Union and State Governments. These include administrative, legislative, financial and executive powers (Articles 245–263). On a gross evaluation, it would be clear that the Union government has more and extra-­ordinary powers than the State governments. This was true once we analyse the situation both from a historical and contemporary perspective. The architects of the Constitution did not visualise sharing of equal powers between Central and State governments. KC Wheare had rightly pointed out that India has a quasi-­federal political system. There could be two reasons attributed to this phenomenon – the impact and shock of the Partition finally buried any imagination for a confederation, with strong powers to the provinces and limited powers to the national government. Such a system would have been a recipe for destruction of the country itself. Secondly, the nation-­building process of a developing nation requires a strong Centre, which holds not only major powers like defence, military, finance, currency, revenue, communication and foreign affairs but also residuary powers besides an upper hand on the Concurrent List. Further, Articles 246 and 247 diffuse the exclusiveness of state jurisdiction, since on any contingency, an item in the State List can be brought into the Concurrent List. It is understandable that in the initial phase of a young nation with a poor base in economy and production, the Union Government has to have a lot of responsibilities over the nation-­building tasks. But eventually, when the state governments sought the widening of its jurisdiction, this was not appreciated and led to a series of conflicts with the Centre. Unlike in Australia, New Zealand or even Canada, every region and subregion in India has strong cultural and ethnic roots and historical developments. The deep history of India with linguistic, ethnic and cultural pluralism has made any attempt to dominate by a strong and asserting Centre will be met with strong opposition by the regions. Robert A. Dahl in his work On Democracy Robert A. Dahl in his work On Democracy (1998) argued that every state or region in India has a

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majority culture, which is non-­existent or a minority elsewhere in the country. According to him, this uniqueness is the beauty of Indian democracy and therefore a single majority culture can never constitute a monolith in the Indian political landscape. Once we accept this theory, it would make us clear that the drive of majoritarianism of any sort will not work effectively in the long run. Instead, India requires a sort of acceptance, tolerance and accommodation of multiple values along with a strong Centre. In other words, Indian multiculturalism is more organic than the Western counterparts like the USA, Canada, Australia, the United Kingdom or New Zealand. It is no wonder that the number of Indian states increased from 16 to 28 and from four to eight Union Territories. Probably, we will have few more States in the coming decade. Also, the Constitution has recognised 22 Scheduled languages; all states have their own official languages (8th Schedule, 344(1) and 351), besides Hindi in Devanagari script and English as the official languages of India (Article 343). Linguistic federalism is a fact of Indian politics despite the few setbacks in the State Reorganisation based on language. The National Education Policy (2020) had also appreciated learning in mother tongue as the best strategy to promote primary and secondary education in India. Ethnic components in the public sphere need proper addressing by the Indian State. Otherwise, the federal system risks the chances of national integration. Several instances of ethnic outburst could be seen in the case of North-­ Eastern states whose concerns are being addressed better now. Similarly, the language agitation in Tamil Nadu following the Centre’s imposition of Hindi as the official language in 1965, rise of Khalistan separatist politics in Punjab during 1980s for a Sikh homeland following the setbacks of Green Revolution are instances to show that ethnic factors cannot be ignored in the process of shaping federal statecraft. Unlike in the USA, the Indian situation has a more primordial base and therefore requires an organic multicultural treatment rather than an artificial melting pot approach. Our party system is heavily conditioned by these factors and therefore, it has its consequential impact (both vertical and horizontal in centre–state relations). Many of the administrative matters do require support and cooperation from all the three levels of governments – national, state and local. The recent pandemic has also thrown light upon the exigencies of cooperative federalism. These are some of the practical dimensions of parliamentary– federal issues of Indian federalism. The slow growth of decentralisation and the chequered evolution of Local Self Governments in India also need a brief discussion here. Originally, on the eve of Independence, India was totally unprepared for a devolution revolution. The basic reason was that Indian society, unlike European societies, lacked social progress, and the political landscape was led by a history of feudalism, patriarchy and further with dominant superstitious faiths and primordial feelings. There was no grassroot sight of Renaissance and

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Enlightenment, and the villages were looked after by local barons and feudal lords. Given this ordeal, the situation in the villages was not at all conducive for social democracy to sprout up. Dr. B.R. Ambedkar, in this situation, was against the rise of local governments since he feared that it would lead to the continued drive of feudalism and upper caste dominance in the post-­colonial set up. Despite the fears, the idea of Local Governments found its place in the Indian Constitution (Directive Principles of State Policy, Article 40). Barring a few state-­level experiments in Rajasthan, Karnataka and Kerala, the bulk of the states were not forthcoming to empower the local governments. Even in the party leadership, there was no visible third-­tier of political leadership. Despite these, the idea of local governments found some imagination as, for instance, the initiative for 62nd Amendment in 1989, the Panchayat Raj initiatives and the District Councils Act in Kerala in 1990. Elections were held to all the 14 District Councils in Kerala, and the councils were formed in 1990. In the meanwhile, the initiative of Narasimha Rao Government at the Centre for the Panchayat Raj Institutions Act and Nagarapalika Act (1993) found fruition. It was a game changer as it legitimised the essentiality and inevitability of the local governments for a huge and diverse political system like India. All state governments passed these two Acts in their respective Assemblies and thereby completed the passage of 73rd and 74th Amendments. It would be too biased if one were to argue that local democracy started to flourish soon with the passage of the Acts. With little tradition and experience, many parties could not even recruit sufficient candidates to contest for Panchayat elections. This was especially vulnerable for getting candidates to seats reserved for women and SC/ST. Moreover, in some villages of Tamil Nadu and Karnataka, women and SC/ST candidates were not even allowed to contest elections by the dominant elites. Again, the performance of Block Panchayats, as an intermediary between District and Gram Panchayats, was plunged in controversy. The limited role of Gram Sabhas and low public participation in it also attracted public criticism. Despite 28 years of local democracy in action, the Local Self Governments in India have a long way to go in empowering themselves and strengthening the third pillar of federal democracy. No state legislation has devolved in practice to all the powers envisaged for them in the Eleventh (29 subjects) and Twelfth Schedules (18 subjects) of the Constitution (Balveer Arora, K.K. Kailash, Rekha Saxena, H. Kham Khan Suan & K.C. Suri (Ed.), 2013, p.109). However, in terms of structure, India has all the attributes of being a healthy federal system with a clear three tier structure. Indeed, the relevance of federal governance is all the more appreciated now. Given the extreme regional divide across the country, the lower structures of governance can do a lot in improving the administration, economy, production and overall efficiency of the government.

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Beyond the provisions of the Constitution, while the government proceeds in action, there are many areas of conflict and cooperation. Three visible instances are the following: infrastructural development, environmental management (including rivers, lakes and forests) and the leadership and management of natural disasters and pandemics such as the Covid-­ ­ 19. Infrastructural development is crucial for the nation’s growth, and every state and region has stakes in it. But in few cases, we find pressure politics dominating the decision-­making process like the dominance of the Tamil Nadu state in the Manmohan Singh coalition government at the Centre (2009– 2014). However, conversely, the Transport and Surface Minister Nitin Gadkari recently complained that Tamil Nadu has not given sufficient space for expansion of National Highways while his Ministry has sufficient money which remain unutilised due to the non-­ cooperation from Tamil Nadu Government. Again, in the case of environmental management, not only Centre–State relations are vital but the inter-­state relations are equally significant. Water, forests and lakes often criss-­cross states, and it is exactly here cooperative federalism has to go into action. Again, many states regularly undergo natural disasters and therefore federal management from multiple levels is sought for. Further, interstate migration, smuggling, illegal drug trade, violation of customs rules etc. take place at the state borders. These demand concerted action of various governments. The most recent and horrific experience of the pandemic also gives us new lessons on how to manage with the potentials of cooperative federalism. While the Union government has a leadership role and space for coordinating functions, we cannot belittle the relevance of State and local governments in this regard. Imagine the plight of the interstate migrants/workers walking all the way from Kerala to Andhra Pradesh, Maharashtra, Bihar, West Bengal, Orissa and Uttar Pradesh in the early 2020 following the pandemic. It took considerable time for each state government to organise Disaster Management cells and units and coordinate with other governments. Similar responsibilities and functions continue even today with the migration of the people (from the unorganised sector in search of jobs) taking place through land borders and coastal belts. Another epicentre of conflict in Centre–State relations has been the position of Governor in the State. Articles 153–166 and other provisions clearly lay down the role and functions of the Governor. In effect, the Governor acts as the formal executive head of the state with the Council of Ministers to ‘aid and advise’ him. In a parliamentary set up the Council of Ministers become the real executive. However, the Governor holds office during the pleasure of the President. Under Article 163, the Governor enjoys some discretionary powers and under Article 201, he can reserve Bills for consideration by the President of India. Ever since non-­Congress parties had come to power (firstly, 1957 in Kerala and frequently in many states since 1967), followed by the rise of defections in political parties, the Raj Bhavan became the centre of politics in

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Union-­State relations. The same politics was re-­enacted when non-­Congress parties came to power at the Centre and the Congress party in the states, at the receiving end. While the Centre was allegedly involved in dismissing state governments using Article 356, the state governments also embarrassed the Centre by forcing the Governor to read anti-­ Centre statements in the Annual Governor’s Address to the House, legislating laws or passing Resolutions that embarrass the Union Government. Again, whenever, the majority of the ruling party/coalition was in doubt, the Governor can use the discretionary powers. But most of the time, it was against the non-­Congress State Governments and allegedly used in a partisan manner. Many parties like the DMK, CPI(M), Telugu Desam and National Conference had requested to abolish the post of Governor itself from the Constitution. Again, the Governor in most of the states were authorised by the state Legislatures to function as the Chancellor of the State Universities. This role landed up in a controversy between the Governor and the state government. Sometimes, the state government would insist for an unqualified person to be appointed as the Vice Chancellor of the University, which would be contested by the Governor. Recent developments in Kerala and West Bengal are instances of this development. Kerala Governor Arif Mohammed Khan went to the extent of demitting the position of Chancellor and requested the Chief Minister to take up the Chancellor’s position, instead of compelling the Governor to violate rules and procedures. In contrast, the Kerala government issued an Ordinance to withdraw the powers of the Chancellor from the Governor and ensure separate Chancellors for each University. In West Bengal, the Chief Minister herself made all appointments to the post of Vice Chancellors in the state universities overshadowing the Governor. The new legislation passed by the Assembly was not signed by the Governor but instead forwarded to the President. It is pertinent to note that Education as an item in the Concurrent List has stakes all over –Central and State Governments as well private and aided institutions (arrival of foreign universities in a phased manner is also noted in the NEP). As of now, we have 1056 Universities – Central Universities, IITS, IIMs, IISERs, NITs, other institutions of national importance such as the AIIMS, IIS. State Universities; Deemed Universities; and Private(unaided) Universities. The total number of colleges in 2021 was 52627, Vocational Colleges 113, ITIs (including affiliated) 14779 and Schools 14,94,052. The number of school students are 250 million, college students 34.3 million, making India the second major educational landscapes of the world. School teachers constitute 9.7 million, college teachers 11.3 lakhs and university teachers 2.14 lakhs. Besides, shortage and failure of filling up vacancies of school and college teachers are also noted. The National Education Policy 2020 aims to achieve 50 % Gross Enrolment Ratio in Higher Education and 100 % GER in Primary Education before 2035. We need to empower the youth in digital education and skill development so as to catch up with the

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Fourth Industrial Revolution. Indeed, the youth constitute the real demographic dividend of the nation. To achieve this target, both Central and State Governments as well as the Private sector have to play important roles. The best example is the recent rise of EduTech industry. To be sure, education therefore has become the prime focus of all stakeholders in a federal system. Equally important is the relevance of building up a healthy society. Health is another item in the State List, but the Central and Local governments also have significant responsibilities. The Covid-­19 experience has taught us many lessons in public health management; areas where we floundered, links that are to be developed and better cooperation achieved across governments. As a huge nation, we failed in creating proper health infrastructure and training and promoting public healthcare professionals. While the government aided health development is significant for a developing country like India, we cannot altogether ignore the contributions of the private sector in the healthcare system. Again, Research and Development are significant engines for the growth of the economy. Infrastructure development is another major area where the combined effects of state, central and private sectors are crucial. India’s tryst with globalisation policies and market-­driven federalism also deserve brief discussion in this context. Unlike in Western–capitalist societies wherein agricultural revolution was followed by industrial revolution and then drove towards a post-­industrial set up, the experience of developing countries was vastly different. India, to begin with, adopted a protective economy based on import substitution policy. The State and the Public sector were expected to lead it from the commanding heights of the economy. Indeed, the Nehruvian socialistic pattern of society model (1955) strengthened the role of the State and the Public Sector. While this was helpful in the initial phase, it simultaneously led to a dependent, protectionist –welfare society model. Competition was totally lacking in all spheres, and this led the governments, over the period, to become unaccountable and corrupt. The fiscal crisis, shortage of foreign currency and the dismal performance of the public sector over the years compelled the Central Government to accept New Economic Policy in 1991. The Government opened the economy to foreign investment and trade, dismantled import controls, lowered customs duties and broke the public sector (Mamadapur, 2016, p.144). The State governments also followed the radical shift in the national economic policies without much resistance. Today, almost all the spheres of activities have witnessed the powerful penetration of the private sector. A paradigm shift has occurred, and this impacted the sphere of federalism too. Competition grew not only in the private sector but also between state governments and in some areas, between central and few State governments. The neo-­liberal policy impacted substantially and modified the conventional role of the State. Economy grew from the conventional Hindu rate of growth of 2.5%

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(1947–1991) to almost double-­digit figures in the post-­globalisation phase. But inequality also widened during the 1991–2021 phase, reminding the nation’s responsibilities to help the marginalised sections and the unorganised sector. The Manmohan Singh-­led UPA government’s tenure (2004–2014) saw the growth and promotion of important policy initiatives like the Mahatma Gandhi National Rural Employment Guarantee Scheme, Right to Information Act, gender and child rights and many other welfare policies related to the unorganised sector. Again, these centrally sponsored schemes do require the support and cooperation of state governments to achieve their full potential. The Narendra Modi government which came to power in 2014 and re-­elected in 2019 also brought in many welfare policies related to sanitation, health, food, agriculture, electricity, education of the girl child, digital education and gender-­based policies, despite its shift from some of the fundamental policies of the previous UPA Government. The rights-­based policies helped to alleviate poverty significantly and strengthened regional development. But inequality widened in all spheres mainly because of the market friendly policy of the governments. In the sphere of foreign policy (which is actually part of the Union List), it has been recently that domestic aspects are becoming important. Actually, along with the issue of national security, economic development and human security have become strong elements in the outcome of foreign policy. India’s approach to South East Asia, Asia-­ Pacific, South Asia and Central Asia underwent phenomenal changes with focus both on national security and economic growth. With the increasing number of Diaspora and international mobility following the growth of international trade, commerce and services, the states in India are also interested in the foreign policy aspects. This compelled the Government of India to set up an Overseas Indian Affairs Division and Public Affairs Division in the Ministry of External Affairs in 2012. A State like Kerala, for instance, earns more than 35% of the GDP from remittances from West Asia. Again, Indian workers, IT and other skilled professionals and business leaders move in considerable numbers to North America, Canada, Australia, New Zealand, West Asia and South East Asian countries. Further, Modi’s Foreign Policy witnessed radical changes especially with the Quadrilateral Alliance of India, Japan, the USA, Australia (critically viewed as Asian NATO by China) and on the other hand, ushering in a more dynamic South East Asia policy and Indo-­Pacific policy. The rise of China, its Belt and Road Initiative policy, recent fall of Afghanistan to Taliban forces, aggressive anti-­Indian posture of Pakistan aided by China, significance of the Central Asia region and the rise of Putin’s Russia, and its attack on Ukraine were all taken into account in this context. While, India continues to be friendly with Russia but its strategic manoeuvres are now more with the USA and its strategic allies (Amulya K. Tripathy & Roshni Kujur, 2016, p.45–46).

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The integration of Kashmir to the Indian Union was a vexing question ever since 1947. During the Cold War period, Pakistan tried to internationalise it with the support of the USA and China. Daniel J. Elazar, the federalism expert, expressed the view that Jammu and Kashmir cannot claim an equivalent status with other states of India because another country had laid a claim over it, as soon as India and Pakistan emerged as independent countries in South Asia. At best, it can be considered as an associated state of the Indian Union (Elazar, 1996). Actually, a sizeable part of Kashmir has been held by Pakistan since 1947 (POK) and a small portion by China after Pakistan handed it over to China. Despite the Indian attempts to ensure democracy and domestic peace in Jammu and Kashmir, external and internal problems increased. Surprisingly, on August 5, 2019, the Parliament revoked the Special Status granted under Article 370 of the Constitution to the State of Jammu and Kashmir. The transfer of Jammu and Kashmir and Ladakh as two Union Territories was a big blow to Pakistan’s traditional policy of creating a continuous divide over India through cross-­border militancy and other strategic moves with the support of China. The Union Government offered an olive branch to the mainstream J&K parties by assuring that regaining the old status of the Jammu and Kashmir as a State is possible once anti-­national activities and militancy in the region are substantially curbed. This has placed some of the Opposition parties in Jammu and Kashmir in a real fix. One thing is certain here, Ladakh is most likely to remain as a Union Territory in future and free from the architecture of Jammu and Kashmir. The possibility of J&K regaining its statehood is also quite possible, provided the militancy declines and normalcy regains in the region. Compared to the challenges in this region, the North East region of India has undergone more positive changes over the years. Despite its ethnic, infrastructural and economic problems, most of the North-­Eastern states had been integrated into the Indian Union. However, borders with China (Sikkim, Arunachal Pradesh, Himachal Pradesh, Ladakh and Uttarakhand), with Myanmar (Mizoram, Nagaland, Manipur and Arunachal Pradesh), with Pakistan (Jammu and Kashmir, Ladakh, Rajasthan and Gujarat), with Bangladesh (West Bengal, Tripura, Meghalaya, Mizoram and Assam), with PoK (Afghanistan), with Nepal (Sikkim, Uttarakhand, West Bengal, UP and Bihar), and with Bhutan (Sikkim, Assam, Arunachal Pradesh and West Bengal) do pose many issues. These include land border disputes, illegal migration, terrorism, illegal trade and drug trafficking, sharing of river water and illegal migration. In addition, Nagaland faces internal ethnic problems between its major ethnic groups like the Kukis and Nagas. Similarly the states such as Mizoram and Arunachal Pradesh face border disputes with Assam. As a matter of fact, integration of the North-­East to the mainstream is significant for India considering the social and general backwardness of the region. In a federation, a minimal level of balanced growth is essential across

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the regions. It is important for the sustainable development of the country. Viewed from this perspective, the North Eastern region falls much behind. Again, in the South, Tamil Nadu has ethnic relations and issues with Sri Lankan Tamils. As a matter of fact, between Sri Lanka and India, there is a maritime boundary and a shallow water sea (30 kilometres wide), known as Palk Strait. The ethnic uprising of Tamils in Sri Lanka and the ethnic war against the Sinhala-­dominated Sri Lankan State (1983–2009) and the consequent developments had affected bilateral relations of the two countries. Domestic politics in Tamil Nadu during this phase also had its impact in Centre–State relations. These developments prove that federalism and international relations are also linked and related on varied themes. On the whole, the synergy for a successful federal polity depends upon its balanced and inclusive growth and development. Although we have improved much since 1947, there are many complex regional problems among the regions. The BIMARU region constitutes the Hindi heartland but is far behind in terms of social and educational development and infrastructural advancement. Relatively, the Southern region is more progressive in terms of education and social development. Some of the cities in North and Western parts of India are much developed. But the rural–urban divide is polarised with very few resilient cities and self-­sufficient villages. The challenges of regional imbalances, digital divide, problems of overpopulation, health, housing and other physical infrastructural issues are also huge. The Central Government has come up with new ideas and planning. Most of the initiative, planning and funds originate from the Central Government and state governments are requested to share the costs. Even in this changed economic situation, planning still has an important role. We need to strengthen cooperative federalism and also understand the nuances of market forces. This resulted in the closure of the Planning Commission and setting up of Niti Ayog (B. K. Pandey & M. Saravanan, 2017, p.204). The ultimate success of a federation lies in sharing resources and responsibilities based on genuine need and efficacy. An ill-­balanced growth invites urban migration beyond control and related socio-­political issues. Already, there are objections to uncontrolled inter-­state labour migration and the gravity multiplied when the host governments expressed their inability to facilitate healthcare support during the trying times of the recent pandemic. These are in addition to the disregard to provide educational and housing facilities to the families of the inter-­state labour force. To be sure, human rights issues of inter-­state migrants are proliferating every day. Finally, the new tax policies following the G.S.T. raised many complaints from the state governments in regard to sharing of the taxes for social security and welfare policies. Similar complaints were raised against the independent commissions like the Election Commission of India and the judiciary. Nevertheless, we have seen remarkable progress in the functioning of the EC in scripting peaceful

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electoral contests across the country. As an electoral democracy, India has a resilient stature. However, the idea of combining Assembly elections with that of Lok Sabha elections is not conducive to the federal spirit. Moreover, combining the two elections will not only become a mammoth exercise but also impractical, due to the abrupt failure of some Assemblies to produce a stable House. Again, the Judiciary is expected to be the natural guardian of the federal system. The Supreme Court has to balance between state governments, state governments and Central Government; adjudicating issues originating from Original and Appellate Jurisdiction besides the unique Advisory functions. Unlike the American system, we do not have a double set of Judiciary, rather a single integrated system with the Supreme Court serving as the Apex Court. Despite its common integrated structure, courts have generally been protective of the federal structure of the Indian Constitution in the recent decades (M. Roy & Ramashray Roy (eds.), 2011, p.106). Notably, both Supreme Court and High Courts enjoy judicial review powers under13 (2), 32 and 226 of the Constitution. The rise of judicial activism is indeed a healthy sign to ensure the vocal expression of (hitherto silent areas) the constitutional liberties and ensure citizenship freedom from the arbiter attitude of federal or state governments. The Limited Role of the Civil Society

Civil society development is crucial to the success of secular democracy and federalism but unfortunately this is an area where we receive many setbacks. Historically, India received a divergent power structure with its semi-­feudal and semi-­capitalist nature besides the influence of tribal setting in many regions. The greatest threat to the growth of civil society originates from the vote bank culture in electoral politics, which is cultivated by almost all the parties. This negatively impacts upon public policy formulation as well. A rational choice approach has become unimaginable in the formulation of many public policies despite our scientific advancements. Liberal and scientific education, civic development, culturalties, network of local governance institutions, prevalence of healthy media culture and volunteerism by local and national organisations . would have gone a long way in building enduring civic bodies across the country. It would have rapidly facilitated decentralised governance and politics with a strong civic culture. Except in few urban pockets, we could not find such a process. Instead, the predominance of traditional society and its narrative has become more acceptable in the political discourse. Despite our long engagement with electoral democracy, civil society progression has been sluggish. Ideally, civil society is expected to contribute to the robust growth of democracy. It serves as the fourth arm of democracy. Theoretically, civil society is expected to be independent and operate in the mid-­space of the State and the

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traditional society. Unlike in the West, India did not undergo, in its history, a robust period of Reformation and Renaissance. Nor a common framework of social reform movement was visible among the regions of India. Very few works attempted to study the role and relevance of civil society in India. Its functioning also differed deeply from region to region (G. Gopa Kumar, 2013, p.46). Historically, few civil society groups and leaders were active in the 18th and 19th centuries. Some of them helped the introduction of social and religious reforms during the colonial period and fought against the superstitious faiths and conservative values. But the colonial powers were indeed happy with the traditional state of affairs and did relatively little to change the conventional system. No wonder, our literacy was just 8% in 1900 and 17% in 1947. Primary and Secondary education was restricted to the elites of the society. With less than 25 universities and around 5000 colleges, the shape of higher education was notably dismal and poor in 1947. Today, remarkable progress has come in all sectors. Education has become a fundamental right. Providing mass education became a major responsibility of all the governments –Central or State. Science, Technology, Engineering, Medicine, Social Sciences, Humanities and Yoga Therapy are being promoted widely as well. The UN has declared June 21, every year, as the International Yoga Day. India has already joined the strong five powers in the world in regard to progress in Space Science, Nuclear Research, Information Technology, Food Technology and Processing and Bio Technology. The Indian software engineers contributed significantly in addressing the Y2K problem which earned a great reputation for the country as an emerging soft power. Today, India has more than five lakh Non-­Governmental Organisations (highest in the world), 1056 universities, 52627 colleges, 15 lakh schools, numerous ITIs and vocational institutes. On the whole, India has become the second largest educational system in the world. As per National Statistical Office data 2021, literacy has increased to 77.70% – males 84.70% and females 70.30% (from a mere 17% in 1947). Similarly, Indian literature, culture and cinema hold a great tradition and standard. Bollywood produces the maximum number of films in the world next to Hollywood. Translation studies and cross-­linguistic studies in literature are growing, and every state has its own contribution in literature and culture. The country has the second largest middle class in the world and has a huge English-­speaking population. The demographic dividend, if properly planned, can lead this country as one of the richest and strongest countries of the world. Often, it claims to be the largest democracy with the fifth largest economy in the world. Despite these continued accomplishments, why is it that traditional mores and practices dominate the mainstream society and sidelines the scope of civic life? Why is it that the political culture is predominantly a subject culture and less participant culture, not to speak of civic culture? Even in the supply and dissemination of the political discourse, through media and party

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platforms, religion and caste issues continue to play a predominant role. Why is it that ordinary people are more oriented to issues of competitive communalism and caste politics than using the positive attributes of democracy in the public sphere? In parliamentary democracy, with the first past -post system, numerical strength always matters. Most of the political parties resort to policies that favour a majority community/ethnic group/caste in the region or try to succeed in swinging electoral support from predominant groups rather than adopting a mandate based on rational choice approach in public policies. Parties field candidates on the eve of election considering the swing factor at the micro and macro levels based on religion, caste or other ethnic factors rather than highlighting the civic discourse. Voter dependency on socio-­ cultural variables like caste, language, region, religion, ethnicity, income has been well-­ established in a number of psephological studies (CSDS-Lok Niti, 2019). The concept of vote bank culture, as formulated by M.N. Srinivas (1950) in a micro study of a village in Mysore District, continues to be a relevant phenomenon for India even today. Sadly, the discourse developed in the media and public platform seldom generates an alternative path that strengthens the civil society debate. Civic groups like the trade unions, students, youth, women, cultural associations and human rights either tune to the party line or remain marginal in their struggle to create an alternative paradigm offered by the civil society. There are few exceptions like the Total Revolution Movement launched by Jayaprakash Narayan (1974–1977), Nirbhaya movement led by Anna Hazare (2012–2013) and the Indian Farmer’s Strike (2021), which sufficiently established the strength of civil society development. Undoubtedly, the civil society discourse in India will improve the quality and sustenance of democracy. Sadly, the linkage between parliamentary democracy and vote bank politics continues to be more resilient than the civil society discourse in politics. The inability of the civil society in countering the misuse of Article 356, blackmailing potential in coalition governments, human rights violations, prevalence of patriarchal values, imposition of Internal Emergency (1975–1977), growth of vote bank culture, inability of the state to accept the Uniform Civil Code (Article 44) for the promotion of citizenship values, and gender inequality sufficiently prove the sad plight of civil society and liberal values in Indian set up. Conclusion

Is India a union of federated states? Is there a federal system elsewhere similar to the Indian Union? Despite the few similarities, Indian and Canadian federal systems are vastly different. Considering the settled nature of the deep multicultural society, ethnic diversity, linguistic pluralism and economic challenges, Indian federalism is much more complex than that of Canada or any other diverse polities. Undoubtedly, federalism is the best mechanism to

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address India’s complexity and heterogeneity. It offers the cushioning effect for accommodation and diversity and provides an equilibrium in governance. However, every state has produced its own variety of politics and party system besides an attempt to work out a pattern for the national level. Conversely, national party politics emerged historically and resulted in shaping a party system having federal dimensions. Over the years, the structural and functional levels of India’s parliamentary politics have proved its adaptability with the typical federal system. But much more has to be achieved in this direction to produce resilience in federal democracy. There are a few reasons for the lack of smooth liaison between the Centre and the States in the Indian federal set up. Basically, the Indian party system has not come into terms with the operational dynamics of a balanced federal engineering. India has moved from a strong one-­party dominance system to a multiparty system, which necessitates a healthy arrangement of coalition politics. Indian states are varied in social profile, history, geography, subculture, language and in the uneven levels of development. Obviously, their needs, demands for development and sustenance are different. Given the limited resources available at the Union, there are areas of friction between the centre and states over resource sharing. This process is primarily led by party considerations. Like in the defunct Congress System, the concept of the same party ruling at the national and state levels is now promoted under the banner of double-­engine government. Invariably, there is a continued step-­motherly attitude by the central government to those states run by non-­ BJP ruled states. Again, the law and order situation and the alleged failure of the constitutional machinery ranges differently across the states. This calls for frequent intervention by the Union government, which is justified but not always appreciated by some of the state governments. We also have numerous examples of the controversy regarding the invocation of Article 356 and the judicial interpretations over it. Finally, the new tax regime, the GST, and its delay in timely distribution to the states have raised a series of complaints particularly originating from the non-­BJP-­ruled states. The centripetal and centrifugal pulls of Indian federalism is likely to continue in future as well. Reducing the uneven economic growth, regional disparities and social under development will go a long way in improving the quality of democracy and thereby the required equilibrium in federalism. The Centre–State relations are to be improved phenomenally. The Niti Aayog, Inter-­State Council and National Development Council need to consider the historicity and complexity of the regions while decision making. Over-­ centralisation, urban-­centrism and political considerations in the distribution of infrastructural and social developmental projects are to be reduced. Actually, regions, periphery and its development are equally important like the core of a nation. Lack of inclusivity in backward regions or the abysmal poverty that plague certain social groups cannot be ignored, according to

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critics. Institutionally, the regions and social groups have remained on the same threshold, albeit the change in the same threshold itself (R.S. Deshpande, in K. Gayathri & K.V. Raju (Eds.), 2016, p.101). Indeed, comprehensive rural development, a sustainable national healthcare system, resilient cities and self-­sufficient villages are important for shaping a cooperative federal system. We have also estimated the challenges to shape a healthy civil society. An enduring citizen identity with a strong civil society background, rather than a community identity, will facilitate the growth of the federal process. Globalisation policies have also impacted upon the functioning of federalism. Privatisation and neoliberalism policies emerged powerful in many sectors, and this restricted the conventional growth of departmentalism and bureaucratism. However, competition and rise of neo-­corporatism frustrated some of the social security and welfare policies. The presence of NGOs and their influence in social welfare areas (including the operation of Corporate Social Responsibility) also brought divergences in the working of the conventional federal architecture. On the whole, parliamentary politics and federal dynamics are linked in a different mode and temperament. The parliamentary–federal nature of Indian politics and the complex multiparty system with its fragile coalition politics framework is not moving in a positive direction to facilitate the growth of cooperative federalism. There are many areas where we can strengthen cooperative federalism. Ideally, the Central government can serve as a facilitator in inter-­ state disputes and provide leadership in promoting cooperation. However, experience since Independence shows that on many occasions, the Central Government itself becomes a party to the conflict besides the proliferating nature of inter-­state issues. This development has led to a form, combative federalism. There is no shortage of studies in the area of improving Centre–State relations under the initiative of the Central or State Governments or by political parties and Think Tanks. While India has all the basic elements to qualify as a federal polity, its performance was often undermined by its traditional political culture, over centralisation tendencies and augmented by a lackadaisical performance of the civil society. Tensions in cooperative federalism are products of this phenomenon. The trajectory from a centralised (sometimes conflicting) federalism to cooperative federalism has therefore been a challenging one. A strong civil society with clear understanding on the dimensions of cooperative federalism, between central and state governments and among the state governments, holds the key for the progress of an inclusive society. Finally, local democracy also has a future but the success of local democracy needs vibrant support from the positive forces of civil society.

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References Balveer Arora, K. K. Kailash, Rekha Saxena, H. Kham Khan Suan, Indian Federalism, K. C. Suri (Ed.) (2013). Political Science. Volume 2. Indian Democracy. Delhi: Oxford University Press. 109. CSDS-­Lok Niti Surveys, 2019, All India Post-­Poll NES2019-­Survey Findings. Dahl Robert A. (1998).On Democracy. New Haven & London: Yale University Press. Deshpande R.S. (2016). Two Steps Forward-­One Step Backward: A Story of Inclusive Growth in India in K. Gayathri and K.V. Raju (Eds.) State, Governance and Financing India’s Development. Foundations Books. New Delhi: Cambridge University Press. 101. Elazar D.J., Elliot, Bulmer. (1987). Federalism, International IDEA Constitution-­ Building Primer 12, Stockholm, 2017. 3. Gopa Kumar G. (2013). Civil Society-­ Politics Interface: The Kerala Experience, Manak Publications, New Delhi. 46. Interview with Daniel Elazar, noted expert on Federalism, at Steamboat Springs, Colorado, USA on 30 July 1996. Kincaid J. (October 4, 2014). How Nations Can Cope with growing separatist movements. The Morning Call. Mamadapur, Avinash. (2016). Politics of Liberalization of Indian Economy: A Review in Sajeev Kumar H.M. et al. Contemporary Indian Politics: Internal Dynamics and External Compulsions. New Delhi: Pinnacle Learning. 144. Pandey B.K. and M. Saravanan. (2017). Centre-­State Fiscal Relations in the New Era of Niti Ayog and the Bygones Era of Planning Commission, S.K. Jain (Ed.) Indian Federalism: Emerging Issues. Delhi: Kalpaz Publications. 204. Roy, Maneesha. (2011). Federalism, Party System and Structural Changes in Paul Wallace and Ramashray Roy (Eds,) India’s 2009 Elections: Coalition Politics, Party Competition and Congress Continuity. New Delhi: Sage Publications. 106. Singh M.P. (2001-­2002). Towards a More Federalized Parliamentary System in India: Explaining Functional Change, Pacific Affairs Vol. 74, No. 4. 553. Tillin, Scrollin, January 28, 2022. Tripathy, Amulya K. and Roshni, Kujur. (2016). Modi’s Foreign Policy: A Changing Scenario on Indo-­US Relations in N.N. Jha and Sudhir Singh (Eds). Modi’s Foreign Policy: Challenges and Opportunities, New Delhi: ICWF and Pentagon Press. 45–46.

6 EMERGING TRENDS IN INDIAN FEDERALISM Collaboration, Competition and Coordination Sandeep Shastri and Katyayani Singh

Introduction

The natural composition of the Indian subcontinent is such that federalism and pluralism stand as the necessary basis for its governance. Owing to the size, population, geographical, linguistic, religious and other diversities, a federal feature is the most apt form of governance (Narang, 2015, p. 3–25). This chapter seeks to locate the current trends in Indian federalism in the broader context of seven decades of politics since independence. A special focus is on the dynamics of administrative coordination, compulsions of political competition and the realities of inter-­governmental cooperation witnessed in recent years. Political leaders, on the other hand, had different views with regard to the adoption of federal features in the Indian Constitution. Sardar Vallabhbhai Patel stood in favour of federalism. Mahatma Gandhi favoured the decentralised structure and preferred a Panchayat-­/village-­based federation, while the then Prime Minister, Pandit Jawaharlal Nehru, and the Chairman of the Drafting Committee of the Constituent Assembly, Dr. B.R. Ambedkar, was in favour of a unitary system of governance (Kumar, 2018; Shastri, 2019). It must be conceded that the differences in approach were because of the distinct way in which these leaders viewed the reality of the challenges that India faced at the time of independence. For Ambedkar, protection of the minorities was a priority, and this would be possible in a unitary form of government. He says: As members of a minority, we look to the Central Government to act as a powerful curb on the provincial majority to save the minorities from the misrule of the majority. As an Indian, interested in the growth of Indian DOI: 10.4324/9781003461197-9

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nationalism, I must make it plain that I am a strong believer in the Unitary form of Government and the thought of disturbing it, I must confess, does not please me very much (2019, p. 508). However, Dr. Ambedkar was ready to consider a federal form ‘if it can be shown that in it, local autonomy is not inconsistent with central unity’ (Ambedkar, 2019, p. 508). The implication was that a federal framework would be accepted if it ensured the unity and integrity of the country. Subsequently, a healthy compromise was reached, resulting in the balance of power between the Centre and the States. Accordingly, India was described as a ‘Union of States’, the union being indestructible. Ambedkar believed that the federal system of India would help in cementing the forces of national unity and integrity, but he had also warned that once the Constitution came into operation, a host of forces would be unleashed which would possibly threaten the unity and integrity of the nation. He specifically states in addition to our old enemies in the form of caste and creeds, we are going to have many political parties with diverse opinions…if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost forever (Ambedkar, 1949, p. 977–8). The federal arrangement that was envisaged by the Indian constitution was clearly reflective of the ‘strong central government’ mindset of the members of the members of the Constituent Assembly. By tilting the balance of power in favour of the central government, the Constituent Assembly unequivocally endorsed the view that the unity and integrity of the nation could only be maintained by a fortified central authority (Shastri, 1994, p. 54). In the process, the question of ‘State rights’ was relegated to the background and was given little attention. As in the case with many other provisions of the constitution, the decision-­makers in the Constituent Assembly appeared more keen to legitimise the existing federal arrangement, as outlined in the Government of India Act of 1935. Several indications in the constitutional framework illustrate this fact: the Constitution’s reference to India as a ‘Union of States’. Further, single citizenship (citizenship of only the country and not the states), a single constitution, initiation of constitutional amendments only by the federal government, a single integrated judicial system and an elite All-­India civil-­ service system all point to the preponderance of the role envisaged for the central government. The Constitution also has a special provision relating to emergency powers, under which the central government can take over the administration of a state on the grounds of a ‘breakdown’ of a state’s constitutional machinery (Article 356). Even in the distribution of powers between the different orders of government, the decisive role of the central

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government is delineated clearly. Though the Upper House of Parliament – the Rajya Sabha – translates to mean House of the States, its membership and powers provide no proof of it being a body intended to represent and protect state interests in the federal arena. The few exclusive powers it enjoys are largely meant to endorse initiatives that may be taken by the central government on matters of intergovernmental relations or intervention by the central government in state affairs. This in brief was the constitutional design of the federal scheme. It would be useful at this stage to contextualise the federal design that the Indian constitution provided for. Although many observers have described India’s federal system as essentially having unitary features or at best quasi-­ federal features, scholars of Indian federalism have asserted that when a country designs its federal system, it keeps in mind its historical circumstances and specific requirements (Frankel et al., 2000). Federalism is rightly defined as a ‘question of degree’ (Bothe, 1998, p. 17). As a form of political organisation, federalism permits both the compulsions of collective action – in terms of shared values, and the need to protect regional space – to be meaningfully reconciled. India, in this regard, is no exception. The global discourse on federalism is clearly focusing attention on the fact that federal systems are inherently political arrangements that afford an opportunity for the plurality within a political system to find legitimate expression. The federal principle is intrinsically an expression of political diversity and accommodation without in any way undermining the basic commitment to the sovereignty of a nation (Elazar, 1993). The fact that federalism ‘rests upon the love for complexity’ (Rougement, 1986, p. 21) is clearly demonstrated by several studies, which have focused on the capacity of federal systems to successfully negotiate and manage political cleavages (among others Ducachek, 1970; Morrison & Stevenson, 1972; Mehden, 1973; Hibbs, 1973; Riker, 1975; Barrow, 1976; Gurr & Duvall, 1976; Powell, 1982; Diamond & Jelling, 1988; Kothari, 1988; Ekeh & Osaghae, 1989; Frankel & Rao, 1989; Frankel & Rao, 1990; Osaghae, 1991; Elazar, 1993; Watts, 1995; Mitra & Singh, 1999; Frankel et al., 2000; Shastri, 2001; Tummala, 2007; Linz, Stephan & Yadav, 2011). It is also relevant to note that in the ‘new’ democracies of Asia and Africa, federalism has been considered the ‘one best way’ to celebrate diversity and manage conflict situations. Several nations have experimented with federal arrangements and crafted institutions and processes to serve their unique needs [the cases of Ethiopia, Nigeria, Sudan, South Sudan, the Philippines, Indonesia, South Africa and Nepal can be cited in this regard. The Indian federal design too was in the context of the historical circumstances and ground realities in which the constitution was prepared and adopted.

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Working of Indian Federalism: An Overview 1952–2022

For a meaningful analysis of the developments in Indian federalism over the last seven decades, five clear phases can be delineated: a) Independence to 1967; b) 1967–1977; c) 1977–89; d) 1989–2014; and e) 2014 to the present. Important developments in four crucial years permit the clear demarcation of these five phases. The year 1967 saw, for the first time, the defeat of the Congress party in several states of India. In 1977, the Congress faced its first defeat at the federal level, and the country witnessed the formation of a non-­ Congress government, and the 1989 marked the end of one-­party domination in Indian politics. The year 2014 saw the return of a single party with a clear majority in the Lok Sabha after 25 years. Interestingly, all four developments are linked to the electoral fortunes of the Congress party! During the first phase – often referred to as the Nehruvian phase, the political leadership underscored the inevitability of centralisation of power to ensure ‘nation building’. When ticklish state problems demanded immediate solutions, Nehru counselled the disputing parties to ‘keep in mind the larger view’ (Shastri, 1992, p. 59). Further, this phase witnessed the gradual – yet steady – thinning down of the line of distinction between the party and the government (Shastri, 1991, p. 15). Politics, in this phase, saw an attempt to forge ‘broad consensus’ on issues, which resulted in what Kothari has referred to as the ‘Congress system’. The consensus became possible because of the high level of legitimacy of the ‘national political elite’ and the coalition of diverse social groups that was brought together in that period. The low level of mobilisation among the depressed social groups also facilitated this process. The second phase (1967–1977) was witness to increasing tensions between the federal and state governments on account of the breakdown of the consensus culture of the earlier years. With non-­Congress governments [until 1989, political parties other than the Congress party were referred to as non-­ Congress parties. This was reflective of the centre stage occupied by the Congress in Indian politics] being voted to power in the states on the one hand and Indira Gandhi attempting to increasingly assert her authority within the party on the other, the constitutional provisions relating to centre–state relations were systematically abused (politicisation of the office of the Governor, misuse of Article 356 and further erosion of the fiscal autonomy of states), and the values that governed the functioning of federal institutions were greatly undermined. The dismantling of the federal structures (and traditions) in the Congress party, with ‘loyalists and favourites at state and constituency level’ replacing ‘party officials and candidates with local knowledge and support’ (Rudolph & Rudolph, p. 138) shows that the collapse of internal democracy in the Congress was more or less complete. With the Janata Party coming to power (at the central level) in 1977, it was hoped that the aberrations in federal-­state relations would be corrected and the

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principles of federal fairness respected and scrupulously adhered to. However, within months of assuming power, the new government established a record of sorts by resorting to the mass dismissal of Congress governments in the States, by invoking Article 356. The absence of internal democracy in the Janata Party resulted in frequent change of chief ministers – often at the directions of the leadership at the central level in several states where the party was in power (Uttar Pradesh, Bihar and Madhya Pradesh can be cited as examples). Increasing tensions in centre–state relations became clearly evident in the early 1980s, with Indira Gandhi’s return to power. While the 1978 split in the Congress had further consolidated her hold over the party and the Chief Ministers of Congress-­ ruled states were her hand-­ picked choices, non-­ Congress Chief Ministers came together to articulate their demand for greater state autonomy. Commenting on developments in this phase, the Commission on Centre– State Relations (hereinafter referred to as the Sarkaria Commission) averred that those in power at the centre have been ‘obliged to use diverse strategies and tactics, which were not always sound from long term interests’ (Commission on Centre-­State Relations, 1988, p. 15). Commenting on the ills of over-­centralisation, the Commission asserted ‘centralisation leads to blood pressure at the Centre and anaemia in the periphery. The inevitable result is morbidity and inefficiency. Indeed, centralisation does not solve but aggravates the problems of the people’ (Commission on Centre-­State Relations, 1988, p. 542). The 1980s were also witness to the collapse of the ‘consensus model’ of governance, and Kothari has succinctly expressed the changes it brought in its wake: An electoral democracy that had … broadened its social base and showed special regard for diverse types of minorities and hence gained so much legitimacy got eroded over time and forced the political managers to compromise with …monied and mafia interests… The erosion of parliamentary, party and federal institutions and decline of authority of the State and of the national political leadership has also been one of the reasons for the rise of new actors on the scene, new forms of political expression and new definitions of the content of politics. (Kothari, 1988, p. 28, 175). The political developments since the 1990s have clearly contributed to ‘greater democratisation of federalism and federalising of democracy’ (Shastri, 2001). States have today emerged as the focal point of Indian politics and have significantly influenced the nature and course of federal politics. Various factors have contributed to the emergence of this trend. The politics of the 1990s have clearly seen the impact of social change on political/electoral processes. With the democratic process ‘seeping downwards’. The implication here is that social groups which had earlier been denied their rightful role in the political/electoral process were now demanding their legitimate

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share of the ‘political cake’, new social/political alliances have been formed, and this has permanently altered the landscape of Indian politics. The end of one-­party domination and the emergence of a competitive party system is merely a reflection of this trend. Their implications for federal governance are far-­reaching and significant. This ‘new language of politics’ was succinctly articulated in the Common Minimum Programme (CMP) formulated by the 13 party United Front (UF) Government (which came to power in 1996), when it promised an ‘alternative model of governance’ based on ‘federalism, decentralisation, accountability, equity and social justice’ (CMP, 1996). While making an unequivocal commitment to strengthening the forces of political federalism – a strong centre, strong states and viable local bodies (CMP, 1996), the CMP went on to add that there had been a new articulation of states’ rights and the need for greater power to the states to meet the aspirations of their respective states (CMP, 1996). The National Agenda for Governance (NAG) – formulated by the Bharatiya Janata Party (hereinafter called BJP) and its allies [The BJP led alliance, which formulated the NAG, came to power in 1998] – also underscored the changing contours of federalism and recognised the need for devolution of more financial and administrative powers and functions to the states and promised to effect decentralisation right up to the grass-­root level by activating and involving local bodies (NAG, 1998). It needs to be stressed that the National Democratic Alliance (1999) was formed by the BJP and its allies. It remained in power until 2004. The NDA manifesto released during the 1999 Parliamentary elections emphasised that the BJP-­led government had ‘set new parameters of purposeful governance’ especially in the field of ‘centre–state relations’. The alliance promised to usher in ‘a new political age of reconciliation and accord’ based on their commitment to ‘federal harmony – ensuring a partnership of the Centre and the States’. The United Progressive Alliance (UPA), which came to power after the 2004 elections and was once again given the mandate in 2009, has underscored its commitment to cooperative federalism in its Common Minimum Programme (CMP). The results of the National Election Study ‘96, 98, ‘99, ‘04, ‘09 coordinated by the Centre for the Study of Developing Societies (CSDS) clearly indicated that local and regional issues have determined electoral outcomes since the 1990s. A linked trend is the polarisation, which Indian politics has witnessed at the state level. While nationally India has seen the emergence of a multi-­party system, at the state and constituency level, there is a bi-­polar or at the most a tri-­polar electoral contest (Heath, Oliver, 1999, p. 66–71). Voters at the state/constituency level have reduced the effective competition to two or three major political players. This implies that the voter choice at the local/ state level is very clearly articulated. However, when this is aggregated

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nationally, the number of effective players dramatically increases – a near ‘multiple bi-­polarity’ (Sridharan, 1999). This fact was reinforced by the 2009 Lok Sabha elections (Kailash, 2009). The political preferences that voters indicate at the state level vary significantly from one state to another, resulting in the need for coalitions at the federal level. The fifth phase (2014–2022) was a period which brought greater stability in the government, with the BJP securing a clear majority in the Lok Sabha both in 2014 and 2019. While in a formal sense the government at the central level was an NDA government, in reality it was a BJP-­led and dominated NDA. While India has been witnessing to a string of coalition and minority governments since 1989, the one formed after the 2014 elections was distinctly different. In coalitions between 1989 and 2014, the position of the Prime Minister was not necessarily one of pre-­eminence. The role of coalition partners in endorsing the candidate of the leading party in the coalition was quite common.1 In the choice of Ministers and distribution of portfolios among members of the Union Cabinet, the bargaining power of the coalition partners (many of whom were from state-­based parties) was patently visible. More often than not, the coalition partner leaders decide who would represent their party in the Ministry. Further, they also bargained (successfully) for key portfolios. This was also true of the NDA government, which came to power both in 1998 and 1999. One witnesses a clear change from 2014 onwards. The BJP nominated Narendra Modi as its Prime Ministerial candidate, long ahead of the election. While the NDA partners endorsed the same, it was not without friction.2 After the 2014 election results were announced and the Ministry was formed under Narendra Modi’s leadership, there was a token representation given to some of the NDA allies of the BJP. More importantly, the portfolios assigned to them were politically lightweight. There was little bargaining power that the coalition partners had in the light of the BJP having secured a majority on its own. This trend was further strengthened after the 2019 Lok Sabha elections. If one were to look at the Union Council of Ministers today,3 the clear dominance of the BJP both in numbers and portfolio distribution is evident. Post 2014, one notices a return to a strong central leadership. One would offer the assessment in the next section that this has not altered the trend of the states of India continuing to be at the centre of Indian politics. Recent Trends in the Working of Indian Federalism – Post-2014

The reason to delineate developments in Indian federalism since 2014 as a separate phase has been listed out in the previous section. The period 2014– 22 has seen a few significant developments. Firstly, a ruling party securing a clear majority, but formally working within a coalition arrangement, has been a feature of this phase. It is posited that this was necessitated by the fact that the BJP (in 2014) was still waiting to gain a national footprint. Over the

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last eight years, it has consciously spread that political presence much wider. Yet, this was also indicative of the fact that ‘states continued to be at the centre of Indian politics’. Secondly, the manner in which the BJP chose a Prime Ministerial candidate for the 2014 elections indicates a clear new emerging trend (Shastri, 2015). A sitting Chief Minister4 was declared well before the 2014 elections as the BJP Prime Ministerial candidate. He continued to discharge the role of Chief Minister until the 2014 Lok Sabha victory of the BJP and his formal appointment as the leader of the BJP (and later NDA) Parliamentary Party. This was the first time in independent India’s electoral history that a sitting Chief Minister was declared as the Prime Ministerial candidate of a party. There have been cases of a Chief Minister becoming Prime Minister, but the manner in which it happened in 2014 was clearly different.5 This again is an indicator of ‘states continuing to be at the Centre of Indian politics’. A third trend witnessed is the clear distinction that voters across the country have been making (especially after 2014) between a national election and a state-­level election. The electoral choice made has been distinctly different. This was witnessed in Delhi, Bihar, Jharkhand, Odisha, Karnataka, West Bengal, Rajasthan and Madhya Pradesh.6 This has led to the electoral jigsaw puzzle across India becoming extremely complex and each piece in that puzzle (each state of India) throwing up a different verdict. If one were to look at the five states in South India, no two states have the same party in power.7 This further heightens the ‘states at the Centre of politics’ argument. Fourthly, the fact that throughout the year we continue to have elections as each state has a different election cycle has led to the country virtually being in permanent election mode. This is not uniquely a post-­2014 development. Yet, the impact of this is seen clearly after 2014. The move of the BJP to popularise the slogan ‘One Nation, One Election’ needs to be seen in this context. The party has been favouring a common time table for Lok Sabha and state assembly elections once every five years. Today, given the fact that there are crucial state assembly elections every year and a Lok Sabha election once every five years, political parties (especially the BJP) seem to be always geared to facing an election and their leaders frequently in ‘campaign’-ready mode. Two developments merit attention in this regard. The focus during campaigns on the ‘virtue’ of a double-­engine government is increasingly heard (Shastri, 2022c). The appeal for voting the same party to power at the national and state level is increasingly being voiced and has important implications for the working of federalism. Another linked factor is the active involvement of central leaders (especially of the BJP) in the campaigns in state elections. Studies have clearly shown that the BJP has been returned to power in states often on the strength of the charisma of the central leadership of the party and the public perception of the work done by the Central Government (Shastri, 2022a, 2022b).8

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Finally, one notices the dominance of the three Cs: dynamics of administrative coordination, compulsions of political competition and realities of intergovernmental cooperation since 2014. The COVID-­19 pandemic has further heightened the impact of the three Cs. Dynamics of Administrative Coordination

A key element of federal dynamics and centre–state relations has been the nature and necessity of administration coordination across levels of government. A major contributor to this inter-­governmental coordination has been the bureaucracy. Given the nature of the working of the two key All India Services – IAS and IPS – much of the administrative coordination happens on account of the networking among the bureaucracy. As all key positions in the Central Secretariat are occupied by officers from the All India Services on deputation to the Centre, the connections that are often established between officers in the state and central government often allow for administrative coordination in spite of the raging political tensions that may often be witnessed between the political leadership at the two levels, especially when different parties are in power9 at the two levels. This was especially seen in handling the COVID-­19 pandemic and is discussed in the intergovernmental cooperation segment. It has also been persuasively argued that much of the ironing out of tensions and differences relating to the GST was resolved through discussions among the top bureaucracy at the two levels. Frequent Secretary-­level meetings of those heading a ministry at the Union and State level have also led to better administrative coordination. The impact of limited administrative coordination was often seen on matters listed in the concurrent list. Subjects in the concurrent list are typically left to the states, but when there is a need for developing a national framework on a particular issue in the said list, the centre often takes the initiative. However, the point of debate is the level of consultation that is put in place as policies on matters in the concurrent list are evolved. What often happens is direction from the centre to the states rather than consultation with the states. A case in point is the National Education Policy 2020. While there is general praise for the Policy Document as developed by a very competent NEP Committee, its success would have been on a much wider span if the representatives of state government were part of the said committee (Shastri & Panjwani, 2023). There would then have been a sense of ownership on the part of the states, and this would have led to better coordination in implementing NEP 2020. It is now caught in the vortex of politics with BJP-­ruled states being in the forefront of its implementation, and in states where non-­ NDA parties are in power, there is a much more lukewarm response to the said policy.

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Compulsions of Political Competition

Post 2014, politics has clearly seen the entrenchment of a multi-­party competitive system in India. For the purpose of analysis, it may be more useful to speak of multi-­state parties and single-­state parties rather than to use the nomenclature of national and regional parties. Till 2014, the United Progressive Alliance led by the Congress was the ruling alliance/party in nine states, while the BJP was in power in just five states. This equation was changed by 2017 when the BJP came to power in 17 states, while the Congress was the ruling party in merely six states (Kailash & Sandeep Shastri, 2017). At the end of 2022, the BJP was in power in 11 states, and its NDA ally was in power in six states, thus accounting for governments in power. The NDA thus has a presence as a ruling party in 17 states – a little over half the states.10 The Congress is in power in merely three states, and a UPA partner leads the government in an additional three states, which accounts for 20% of the states. In seven states, a party/alliance which is not part of the UPA or NDA is in power. This indicates an authentic power-­sharing arrangement across political parties. It has also resulted in centre–state relations being caught in the vortex of competitive politics. This is reflected in three important developments. Firstly, given the fact that there are different cycles of elections for the state legislatures, the country seems to be in campaign mode, in long phases, every year. During these campaigns, the shrill rhetoric that one notices between parties in the competition is often on account of the fact that parties in power at the centre are often challenging a ruling coalition in the state, which is from a different political formulation. This often results in the ‘flourish of rhetoric’ with little attention to the ‘facts of reality’. This has been seen in the recent election campaigns in West Bengal, Punjab and Gujarat. For short-­term electoral gain, ‘divisive rhetoric’ replaces ‘disciplined discourse’ and has often vitiated both relations between political parties, especially when different parties are in power at the centre and in the states. Secondly, the office of the Governor has been in the zone of controversy in the working of the federal system. This is not merely a post-­2014 phenomenon. Ever since the inauguration of the Constitution, the office of the Governor has been embroiled in contentious debates. Much of the controversy is related to the relationship between the Governor and the Chief Minister. This is especially so in states where a different party is in power as compared to the centre. Two dimensions of this controversy assume special significance. One, the profile of individuals appointed as Governors and secondly, the procedure followed for their appointment. On both counts, it is noticed that the conventions that were hoped to be followed, or an assurance which was given in the Constituent Assembly, have been set aside by the government in power.

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This lends credence to the argument that the ruling parties at the centre have used the gubernatorial office as an important benefit that can be distributed among its political loyalists and retired officers, who need to be rewarded. It could thus be argued that this fact has resulted in the devaluation of the office of the Governor as the original constitutional intent of the Constituent Assembly members have not been honoured. In the Constituent Assembly, the assurance was held out that while appointing Governors, the Chief Ministers of States would be consulted. Over time, this convention has been consistently violated and Chief Ministers have been informed of a gubernatorial appointment rather than being involved in a consultation process prior to the finalisation of the appointment. The record of the National Front Government (1989–1990), Congress government (1991–1996), United Front Governments (1996–1998), NDA governments (1988–2004; 2014 onwards) and UPA governments (2004–2009) have been the same in this regard. If one were to review the individuals occupying the office of Governor today,11 eight out of every ten have been politicians supporting the ruling party at the centre. The remaining two have been retired government and military officers. It is a fact that Governors in states where a party other than the ruling party at the centre is in power have been the most controversial and have running feuds with the Chief Minister. This includes states like Rajasthan, West Bengal, Kerala, Andhra Pradesh, Telangana and Chhattisgarh. Thirdly, the compulsions of political competition are also reflected in the criticism of the centre by the state government of favouritism towards specific states in particular or states ruled by the party in power at the centre, in general. The recent unease in Maharashtra over the shifting of the Vedanta-­ Foxconn project and the Tata-­Airbus aircraft project from Maharashtra to Gujarat has been the focus of attention.12 (DH Web Desk, 2022) Further, the approval by the Centre of three Bulk Drug Parks to Himachal Pradesh, Gujarat and Andhra Pradesh has also been a bone of contention for several states.13 Similarly, the Chief Minister of Telangana and his supporters have been consistently arguing that the conditions that needed to be fulfilled as part of the AP State Reorganisation Act have not yet been fulfilled.14 The impact of these developments on Indian federalism in general and centre–state relations in particular have been far-­reaching and has been a cause of friction and tension. While it is good to have a strong government at the centre, it is all the more important to have a healthy, transparent and fair competition between the states, with the centre not being seen as partial to a few states. Realities of Intergovernmental Cooperation

In recent years, all federal systems have seen an increased focus on intergovernmental cooperation. It is increasingly apparent that no function of

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government is exclusively in the domain of the centre or the states or even the local governments. Most functions involve the need for intergovernmental cooperation. This cooperation has seen some interesting trends since 2014, especially after the COVID-­19 pandemic. Saxena and Pathak have elaborated at length on how the issues relating to the COVID-­19 pandemic were handled. As per the Constitutional mandate in India, healthcare has been assigned to the state governments. Yet, as per the Epidemic Diseases Act 1897 and the Disaster Management Act 2005, the central government is required to play a coordinating role. Soon after the declaration of COVID-­19 as a ‘disaster’, the Union government imposed a nationwide lockdown in late March 2020. Many believe that this was done without any prior consultation with the states. While the states had serious reservations about the lack of adequate discussion on this matter, the frequent video dialogues between the Prime Minister and the State Chief Ministers after the declaration of the lockdown saw detailed and sustained intergovernmental interaction. As a result of these consultations, state governments secured greater autonomy in managing the pandemic in their states. The states also depended heavily on the local administrations to test and isolate affected populations. The Union government continued to play an important role. ‘Intergovernmental relations during this period were not free of conflict, and the Supreme Court was called to settle some disputes’ (Chattopadhyay & Knupling, 2021). Saksena and Pathak maintain that the Prime Minister is on record admitting that without the coordination and cooperation between various levels of the government, containment would not have been possible (Saksena & Pathak, 2021). It was clear that after the declaration of the first lockdown, the Prime Minister thought it important to involve the state Chief Ministers in all decisions relating to the pandemic. In a blog titled ‘Reforms by Conviction and Incentives’ written on LinkedIn, Prime Minister Modi asserted that a ‘significant increase in the availability of resources was made possible by an approach of Centre-­State bhagidari.’15 He went on to assert that we realised one size does not fit all, and therefore the centre had to work with the states. Prime Minister Modi said that this cooperation represented a ‘pleasant departure from the past’. Conclusion

In the larger political landscape of Indian federalism and centre–state relations, the developments since 2014 have had a multi-­track impact. There has been an increase in the base of electoral participation, an attempt at democratisation of the federal process and the emergence of a polity marked by the compulsions of political contestation, realities of sporadic inter-­governmental cooperation and administrative coordination behind closed doors.

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The working of the federal system has had to accommodate the emergence of a range of state-­based political parties. These state-­based parties are not merely the nucleus of politics in many states, they have come to play a pivotal role in national politics. The re-­emergence of a single party majority trend in the Lok Sabha has not diluted this fact. Parties in India reflect the changing contours of politics across the country. In significant ways, the emerging competitive party system reflects the increasingly assertive role the states have come to play in national politics. While commentators have spoken of the emergence of a new one-­party dominant system, it is still in its infancy and may not well have all the features of the earlier one-­party dominant system. The multi-­verse of Indian democracy is truly reflected in the dynamics of federalism and centre–state relations.

Notes 1 One notices this is in the way V.P. Singh, Chandrashekar, H.D. Deve Gowda and I.K. Gujral rose to the position of Prime Minister. Even in the nomination of Manmohan Singh to lead the UPA coalition, the non-­Congress partners of the UPA played a crucial role. This would also be true in the case of Vajpayee (especially in 1998 and 1999) where the support of non-­BJP, NDA partners was crucial. 2 The manner in which Nitish Kumar’s JDU withdrew from the coalition is a case in point. 3 As on 31 December 2022. 4 Narendra Modi, the Chief Minister of Gujarat. 5 Among our former Prime Ministers, several had been Chief Ministers earlier in their career. The cases of Morarji Desai, Charan Singh, V.P. Singh and P.V. Narasimha Rao can be cited in this regard. However, there was a long gap between their relinquishing the Chief Ministership and becoming Prime Minister. H.D. Deve Gowda was one case where a Chief Minister directly went on to become Prime Minister (1996). Yet, he was never announced as the Prime Ministerial face of the alliance during the elections. Deve Gowda himself conceded that he never thought he would emerge as a consensus candidate for Prime Ministership during the election campaign and was more keen on retaining his Chief Ministership of Karnataka (Shastri, 1996). 6 It may be fair to point out that Karnataka initiated this trend in 1984–1985. In the Lok Sabha elections held in late 1984, the voters in Karnataka endorsed the claims of Rajiv Gandhi to lead the Congress by giving 24 of the 28 Lok Sabha seats in the state to the Congress. This was even as there was a Janata party government in Karnataka led by Ramakrishna Hegde. Hegde resigned on moral grounds necessitating a mid-­term State assembly elections within a few months in March 1985. In this election, the Karnataka voter gave a clear mandate and majority to the Janata Party. 7 While Andhra Pradesh has the YSR Congress in power, in Telangana it is the TRS, in Tamil Nadu it is a DMK-­led coalition, in Kerala it is a Left Democratic Front government and in Karnataka a BJP government. 8 The recent cases of Goa, Uttarakhand and Gujarat can be cited in this regard. 9 Senior bureaucrats at both the central and state level have conceded the fact in interviews that in closed-­door meeting away from the media and political rhetoric, a lot gets done at the level of the bureaucracy. Yet, it must be conceded that this

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collaboration of often on issues that the bureaucracy would like to prioritise and not necessarily what the political leadership may want. 10 There are 28 states and elected governments in Delhi and Puducherry, making a total of 30. 11 As on 31 December 2022. 12 https://www.deccanherald.com/national/west/maharashtra-loses-three-majorprojects-to-gujarat-1157377.html 13 Bulk drug park that MVA worked for has gone to Gujarat, Andhra and Himachal: Aaditya Thackeray|Cities News, The Indian Express. 14 Modi is icon of partiality, says KTR-­The New Indian Express. 15 Bhagidari means partnership.

Bibliography Ambedkar, B. (1949). Constituent Assembly Debates (Proceedings) (9th December, 1946 to 24th January, 1950). Vol.XI. [Online] Available at: http://164.100.47.194/ loksabha/writereaddata/cadebatefiles/C25111949.html [Accessed 22 February 2022]. Ambedkar, B. (2019). Writings and Speeches: Vol.II. 1st ed. New Delhi: Dr. Ambedkar Foundation. Barrow, W.L. (1976). ‘Ethnic Diversity and Political Instability in Black Africa’ Comparative Political Studies 9: 139–70. Bothe, Michael. (1998). ‘Federalism: The Historical Metamorphosis of a Concept’ in Kueck. etal. (ed). 15–26. Chattopadhyay, Rupak and Felix Knupling. (2021). Federalism and the Response to COVID-­19. Forum of Federations, Routledge. Common Minimum Programme. (1996). ‘United Front’s Policy Statement.’ Mainstream. 34(28): 13–18. Commission on Centre-­State Relations. (1988). Report. Nashik: Government Printing Press. Diamond, Larry, Jelling, S.M. Lipset. (eds) (1988). Democracy in Developing Countries. Boulder: Lynne. DH Web Desk (2022). Maharashtra loses three major projects to Gujarat. Deccan Herald.https://www.deccanherald.com/india/maharashtra-loses-three-major-projectsto-gujarat-1157377.html Ducachek, Ivo. (1970). Comparative Federalism. Holt, Rinehart and Winston. Ekeh, Peter, and Eghosa Osaghae. (eds). (1989). Federal Character and Federalism in Nigeria. Ibadan: Heinemann. Elazar, Daniel. (1993). ‘International and Comparative Federalism’. Political Science &Politics 26: 1990–95. Frankel, Francine and M.S.A. Rao. (1989). Dominance and State Power in Modern India: Decline of a Social Order. Vol.1. Oxford University Press. Frankel, Francine and M.S.A. Rao. (1990). Dominance and State Power in Modern India: Decline of a Social Order. Vol. 2. Oxford University Press. Frankel, Francine and Zoya Hasan, Rajeev Bhargava and Balveer Arora. (2000). Transforming India: Social and Political Dynamics of Democracy. Delhi: Oxford University Press. Greenstein, Fred and Nelson W. Polsby. (eds) (1975). Handbook of Political Science: Governmental Institutions and Processes. Reading: Addison Wesley. Gurr, TedRobertand R. Duvall. (1976). ‘Introduction to a Formal Theory of Conflict within Social Systems’ in Larsen, O.N. (ed). The Uses of Controversy in Sociology. New York: Free Press.

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Heath Oliver. (1999). Anatomy of BJPs Rise to Power. Economic and Political Weekly 34: 34–35. Hibbs, D.A. (1973). Mass Political Violence: A Cross National Analysis. New York: Wiley. Kothari, Rajni. (1988). State Against Democracy. Delhi: Ajanta. Kailash, K.K. (2009). Alliances and Lessons Economic and Political Weekly 64(39): 52–57. Kailash, K. and Sandeep Shastri, S. (2017). The Contest in Context. Seminar. Kumar, M. (2018). Nature of Indian Federalism: An Analysis of Historical Basis and Problems. International Journal of Humanities and Social Science Invention, VII(1), 42–47. Larsen, O.N. (ed). (1976). The Uses of Controversy in Sociology. New York: Free Press. Linz, Juan, Alfred Stephan and Yogendra Yadav. (2011). Democracy and Diversity. Delhi: OUP. Loksabha Secretariat. (2014). Constituent Assembly Debates Official Report Vol.VII. 4-­11-­1948 to 8-­1-­1949, New Delhi: Jainco Arts India. National Agenda for Governance. (1998). Mainstream. 36(15): 21–24. National Commission for the Review of the Working of the Constitution. (2002). Report. www.ncrwc.nic.in National Democratic Alliance. (1999). Election Manifesto for a Proud Prosperous India: An Agenda. Delhi: NDA Campaign Committee. Mehden, Fred Von der. (1973). Comparative Political Violence. Englewood: Prentice Hall. Mitra, Subrata and V.B. Singh. (1999). Democracy and Social Change in India. New Delhi: Sage. Morrison, Donald and H.M. Stevenson. (1972). ‘Integration and Instability’. American Political Science Review 66. 902–27. Narang, A. (2015). Indian Federalism: Nature and Working. In: S. C. Kashyap, ed. Constitutional History of India. New Delhi: Centre For Studies in Civilization. 3–25. Osaghae, E.E. (1991). ‘Ethnic Minorities and Federalism in Nigeria’. African Affairs 90(359). 237–58. Powell, G. Bingham. (1982). Political Performance in Contemporary Democracy. Cambridge: Harvard University Press. Riker, William H. (1975). ‘Federalism’ in Greenstein, Fred and Nelson W. Polsby. (eds). Handbook of Political Science: Governmental Institutions and Processes. Reading: Addison Wesley. Rougement, Denis De. (1986). ‘Textes sur le federalisme’. CAMDOS. 36. Saksena, Rekha and Raunak Pathak. (2021). Federalism and the COVID-­19 Crisis: Centre-­State Apposite Relations in India in Chattopadhyay. Shastri, Sandeep. (1991). “Nehru and the Congress Party: The Nurturing of a Nascent Democracy.” Journal of Karnatak University. 24. Shastri, Sandeep. (1992). ‘Issues in Indian Federalism: The Ambedkar Perspective’ in Ambedkar and Social Justice Vol.1. S.S. Shashi (ed), New Delhi: Publications Division. Shastri, Sandeep. (1994). Dynamics of Legislative Control Over Administration: The Role of the Public Accounts Committee. Uppal Pub. House. Shastri, Sandeep. (1996). ‘Karnataka: Emergence of a Third Force’Economic and Political Weekly, 15–20 January.

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7 THE FEDERAL DYNAMICS OF INDIAN FOREIGN POLICY Issues, Concerns and Trends M.J. Vinod, Lakshmi Karlekar and Joseph Chacko Chennatuserry

Introduction

Foreign policy which is a multilayered and multifaceted process is formulated and implemented in highly complex domestic, regional and international environments. India has a wide range of interests which are anchored in diverse parts of the world. To understand contemporary Indian foreign policy-­making and implementation, the influence of domestic politics is critically important. The federal dynamics have been a powerful force in shaping India’s foreign policy. States are experiencing challenges and transformations both internally and externally. As security threats become increasingly globalised and transnational in nature, foreign policy has become more multidimensional and cooperative. The former Foreign Secretary Ms. Nirupama Rao explicitly stated that the ‘foremost task of India’s foreign policy is to enable the domestic transformation of India’. This implies the transformation of India’s economy and society. This requires India to work for a supportive external environment, which could in turn help India to focus on growth and development (Address by Ambassador Nirupama Rao – March 22, 2012). Indian federalism stands at the crossroads. The role of the states in India’s foreign policy-­making and implementation is a subject of growing discussion and debate. Gone are the days when the Centre could go ahead with agreements with neighbouring countries as it did, for example, in handing over Katchatheevu Island to Sri Lanka without taking into account the sentiments of the people of Tamil Nadu (Chandrasekharan, 2012). Conduct of India’s foreign policy is no longer the exclusive domain of the federal government in India. The Indian Constitution provides for a strong DOI: 10.4324/9781003461197-10

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centre, yet there is a growing consensus that the states are increasingly involved in foreign policy advocacy (Raju, 1988, 1991). The era of coalition governments has increased the ‘scope’ for such advocacy. Coalitions are suspect to sectional or party pressure. The issue is to what extent states undermine national security or the government’s stated foreign policy. Further, the ‘influence’ and ‘reach’ of the states have increased given the reality of globalisation, liberalisation and economic reform. It propels the states to accommodate both supranational and sub-­national forces. Participation of regional governments in foreign policy is a global phenomenon. This phenomenon has been described as ‘constituent diplomacy’ or ‘paradiplomacy’ by John Kincaid for the first time in 1990. He attributes the phenomenon to a cocktail of factors like globalisation, economic liberalisation, diffusion of technology and the decentralisation of political power (Singh, 2012). Kincaid visualised a foreign policy role for local and regional governments. Perhaps, one may argue that paradiplomacy has become a global practice. The chapter would enumerate the ideational constructs of federalism of India under two political regimes, namely, the United Progressive Alliance (led by the Indian National Congress) in the first section of the chapter and the National Democratic Alliance (led by the Bharatiya Janata Party) in the second section. Section A: States and Indian Foreign Policy under the United Progressive Alliance (UPA) Coalition Governments, Cooperative Federalism and Foreign Policy Making under the UPA Government Led by the Congress Party

With the decline of single-­party dominance, the relevance of regional political parties cannot go unnoticed. Coalition governments have become the norm in Indian politics. Small regional parties with a handful of parliamentarians are able to get crucial cabinet posts and also take advantage of the electoral calculus. At times, they have virtually held the government to ransom. Coalitions tend to become vulnerable to party or sectional interests. The coalition government’s dependence on regional parties has resulted in a subtle power shift when it comes to foreign policy prioritisation and perceptions. Such ‘federal coalitions’ increasingly shape not only domestic policy but also foreign policy. States are now even bringing foreign and security issues to the bargaining table. They have given the regional parties a variety of participatory opportunities, even in the field of foreign policy. Many of the regional parties tend to have a disproportionate influence over the formulation and implementation of Indian foreign policy. The share of these regional parties in the Parliament has been increasing over the years. The political scene is so fragmented that parties must enter into coalitions and share power to make policies. Hence, most foreign policy decisions

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very often reflect a struggle among coalition partners, which must get along to keep the coalition together. Competitive populism seems to be ruling the roost (Manoj, 2013). From a more positive perspective, coalitions have provided options for alternative world views in the realm of India’s foreign policy. Genuine non-­alignment and the Gujral Doctrine are distinct examples of this. However, two fundamental questions need to be raised in this context: 1 How does an unstable coalition limit the country’s ability to develop a credible foreign policy? 2 How do regional adversaries exploit the perceived weakness of a coalition to maximise their political interests? Hence, we have seen how Rajiv Gandhi’s government authorised the dispatch of the Indian Peacekeeping Force (IPKF) to Sri Lanka in 1987. His successor, V.P. Singh soon after becoming Prime Minister ordered the immediate withdrawal of the IPKF. The pressures brought to bear on the V.P. Singh government by both the DMK and ADMK parties in Tamil Nadu were indeed a contributory factor in this context. Many governments have also been proactive in their engagement with foreign governments. Some state governments like Karnataka and Gujarat have even initiated foreign summits. One can also recall the visit of former Secretary of State Hillary Clinton to West Bengal in May 2012 and her meeting with Chief Minister Mamata Banerjee to discuss the possibility of US investment in West Bengal. Globalisation, Liberalisation and Economic Dynamics: A Link to UPA Governance

Economic interdependence has consequences within and outside state boundaries. India is witnessing the increased flow of capital, technology, ideas and innovation. India’s growing integration with the global economy is a fact of life and poses challenges as well as opportunities. Globalisation connects more economies in worldwide financial and trading markets, as experienced in the phenomenon of regional economic integration. The larger issue to be addressed is how states are coping with globalisation and the pressures for greater liberalisation. Globalisation has introduced powerful new sources of economic vulnerability. The question is whether India’s views on globalisation have evolved in tandem with its quest for development, security and status. The most recent manifestation of this debate has to do with the whole issue of FDI in retail. Hence, India needs to manage globalisation proactively so as to maximise benefits and minimise harms. Under conditions of globalisation, there are no absolute winners or absolute losers. The benefits of globalisation have been uneven, and new challenges have been thrown up. These include growing inequalities within and between

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states, growing inequity, volatility of the financial markets and threats from non-­state actors. The external challenges emanating from the imperatives of economic globalisation need to be factored in (Aspen Institute, 2012, p. 5). India’s economic growth requires deepened economic engagement at the level of trade, labour, technology and ideas as well as partnership between the federal government and the states. Sridharan argues that states have gained influence in foreign affairs advocacy because of two trends, that is to say, the increasing regionalisation of Indian politics and economic liberalisation. In the process, they seek FDI and trade promotion. In other words, the states are keen to capitalise on the global opportunities (Rafiq & Srinidhi, 2005). As India’s economy grows and its integration with the global economy increases, the domestic government is bound to reflect on the making and implementation of Indian foreign policy. To understand these formulations and issues in greater detail, the following case studies under the UPA regime are discussed below: CASE STUDY 1:  INDIA-US NUCLEAR DEAL AND THE INFLUENCE OF DOMESTIC POLITICS The India–US nuclear deal had been the subject of intense debate and discussion among parliamentarians, policy-­makers, political parties, media, civil society, strategic experts and the scientific community of the two countries. The deal signalled the end to the isolation of the Indian nuclear industry. Perhaps, it is the recognition of India as a responsible nuclear geostrategic power. The July 2005 ‘Joint Statement’ on civilian nuclear cooperation represented the most decisive step on the part of the US in demonstrating its readiness to ‘treat India differently’ from that of a nuclear pariah to that of a partner. The US–India nuclear deal was frozen for more than a year due to the opposition of the leftist parties. In 2007, the CPM threatened to bring down the coalition government if Prime Minister Manmohan Singh’s UPA government went through with the nuclear deal. The then main opposition party the BJP also opposed the deal given their political stakes. The Left finally pulled out of the coalition, leading to the crisis in UPA-­I in 2008.

CASE STUDY 2:  INDIA-SRI LANKA RELATIONS: THE TAMIL NADU FACTOR Domestic politics in Tamil Nadu has clearly and strongly influenced India’s Sri Lanka policy. The Tamil community in Sri Lanka has, over the years, drawn

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logistical and moral support from Tamil Nadu. The withdrawal of the DMK from the UPA government was a reflection of the rough-­and-­tumble of coalition politics. The controversy involved a resolution on Sri Lanka adopted by the United Nations Human Rights Council (UNHRC). Its recent history goes back to 2012 when Washington sponsored a resolution to press for greater accountability for the events that took place at the end of the civil war in Sri Lanka. India’s ‘yes’ vote was more due to pressure from the DMK and ADMK parties in Tamil Nadu than pressure from the US. This surprised many because it contradicted India’s normal practice of not voting for country-­specific resolutions. The second part of the events at that point of time unfolded at the March 2013 meeting. On this occasion, Washington sponsored a much sharper resolution than that in 2012. The DMK wanted the UPA government not only to vote for the resolution but also to amend the resolution in the UN, tantamount to accusing Sri Lanka of war crimes and genocide (Teresita & Howard, 2013). What really drove events was the rivalry between the DMK and the AIADMK, which has alternated in power in Tamil Nadu. They have also alternated in power and dominated the political scene in the federal government by being part of the UPA and NDA, respectively. The Tamil factor in the Sri Lanka context tends to be a highly emotive issue with tremendous potential for political mileage. Being part of different coalitional arrangements, both parties have used their political leverage to put pressure on the federal government. In an effort to strike a deal with the DMK, India’s UNHRC representative was summoned to New Delhi, with instructions to toughen the resolution. However, this last-­minute effort went in vain. On March 21, 2013 the resolution was passed with 25 positive votes, 13 negative votes and eight abstentions. India and Sri Lanka had once again overridden their normal distaste for country-­specific resolutions, and hence since then New Delhi and Colombo have had much to do to mend fences. The Sri Lankan Tamil issue was used as a basis to withdraw from the UPA coalition as it was also politically expedient for the DMK to leave the coalition. The DMK even lobbied foreign embassies in New Delhi to toughen its stand. The Government of India even cancelled the India–Sri Lanka defence dialogue. Not to be outdone by the DMK, Chief Minister Jayalalitha of the AIADMK banned Sri Lankan players from participating in the IPL matches in Chennai. The events culminated with the decision of the Prime Minister to boycott the CHOGM Conference that took place in Colombo.

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CASE STUDY 3:  TREATMENT OF INDIANS ABROAD AND FEDERAL DYNAMICS WITH SPECIFIC REFERENCE TO THE GULF REGION India has the largest diaspora population in the world. Among the 13.6 million Indians who live outside India, almost 7.6 million are in the Middle East region. The oil boom in the Gulf region in the 1970s was the primary reason for this flow of migrants. The role and/or treatment of the Indian diaspora in foreign countries has generated much discussion and debate in various states in India. For example, the Emirates and West Asia have over four million Indian workers, about half of them from Kerala. Remittances from them are critical to Kerala’s economy. The India–Gulf corridor is the second largest migration corridor in the world. Migrations and remittances from the Gulf region have been a major factor for poverty alleviation in Kerala. From an overall perspective, remittances from the Gulf region account for about 3.1% of India’s GDP. Perceived or genuine discrimination against Indian workers in West Asia, especially in Saudi Arabia and the United Arab Emirates, has resulted in pressure from constituency MPs in Kerala on the federal government in New Delhi (Ashok & Rory, 2011). There is a separate ministry for non-­resident Keralites in the government. Of late, a variety of discussions have taken place about the kafala system of foreign labour sponsorship, which ties workers to their employers. Some have termed it modern-­day slavery. Many issues like non-­payment of salaries, excessive hours of work, non-­payment of overtime allowance, denial of basic labour rights and deaths due to heat exhaustion have come up for deliberation in the State Assembly and also been taken up by various human rights organisations. During the phase 2015–2018, for example, the government of India had to oversee the return of close to one million migrant workers. Treatment of Indians in Australia at the turn of the century has been a matter of contention. Some incidents of violence and crime against Indian students in Australia resulted in community-­level activism in states like Punjab and Haryana. This has forced provincial legislators and parliamentarians to take notice and even put pressure on the MEA. In recent times, allegations of persecution of ethnic Indians in Malaysia led to the mobilisation of Tamil and Hindu political groups in India. The Government of India had to manage the involuntary return of nearly one million migrant workers from the Gulf region.

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CASE STUDY 4: THE TEESTA RIVER ISSUE Water management has been a contentious issue between India and Bangladesh for a long time. Prime Minister Manmohan Singh’s visit to Bangladesh in September 2011 which hit the headlines had to do with a regional party and a former coalition partner in the federal government. Prior to the visit, India and Bangladesh worked out a variety of agreements to be signed by the Prime Minister during his visit. This included the river Teesta water-­sharing agreement. The Teesta which is a tributary of the Brahmaputra originates in the Teesta Kangse glacier in Sikkim and after traversing 172 km in the hilly reaches runs for 97 km in the plains of India and another 124 km in Bangladesh. The main dispute over the Teesta has to do with the sharing of the waters during the lean period. Bangladesh expects to get 50% of waters downstream. Bangladesh as a lower riparian has been sensitive to the issue. Technically, the state governments do not have a veto, but they can wield much influence, as happened in the case of the Teesta River waters issue when West Bengal Chief Minister Mamata Banerjee decided to boycott the Prime Minister’s visit to Bangladesh. This was in spite of the best efforts by then National Security Adviser Shivshankar Menon to build bridges with the Trinamool Congress leader. The Union government was forced to call off the signing of a pact for sharing of the waters with Bangladesh. The problem has also been one of exactly quantifying the availability of water in the Teesta River especially during the lean months. There were expectations that in exchange for the river waters treaty, Bangladesh would provide India transit rights to its land-­locked northeast. Since the agreement was not signed, Bangladesh, in retaliation, withheld the transit agreement. In the years to come, getting the consent of the West Bengal government for both water and transit will become necessary. West Bengal has contended that the flow of water in the northern parts of the state decreases drastically during the lean months. More recently, India and Bangladesh had signed an agreement for the sharing of the Kushiyara river in September 2022. The signing of an agreement has been in the works for quite some time now. Hence, it is in the interest of both the countries to settle the issue as early as possible.

CASE STUDY 5: SIR CREEK ISSUE Sir Creek is a 96-­km water body that empties into the Arabian Sea from the Rann of Kutch marshlands. It involves a 100–150 sq. km stretch of swamp,

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which is flooded almost throughout the year. The dispute goes back to 1908 between the ruler of Kutch and the British authorities in Sindh. The Creek roughly divides the Sindh province of Pakistan from the Kutch region of Gujarat. Hence, the dispute has to do with the maritime Line between the two. Over the years, India has argued that the Line needs to be drawn in the middle of the Creek. However, the focus is on the divergent interpretations of clauses 9 and 10 of the Bombay Government Resolution of 1914 signed between the Government of Sindh and the Rao Maharaj of Kutch. It may be recalled that on the eve of the Gujarat elections, then Chief Minister Narendra Modi in a letter to Prime Minister Manmohan Singh argued that not only should India not hand over the Creek to Pakistan, it should stop any dialogue with Pakistan on the issue. Gujarat should not be kept in the dark, he argued, and if the Centre does so, the people of Gujarat will not forgive him. Striking a rather emotional cord, he contended that Sir Creek is not about elections, but it is a part of our body, and you cannot give away a part of your body. Then Chief Minister Narendra Modi demanded a ‘freeze’ on the issue and warned that any attempt to hand over Sir Creek will be a strategic blunder. In fact, a joint survey was undertaken in 2007, which resulted in a joint map that was authenticated by both India and Pakistan. At the 2008 talks in Islamabad, copies of the joint map were also exchanged. Narendra Modi had even raised the matter in the Chief Minister’s conference on internal security held in New Delhi on April 16, 2012. The former Indian High commissioner to Pakistan Mr. G. Parthasarathy has opined that ‘It is no longer possible to settle land boundaries, river waters or maritime boundaries with our neighbours like Bangladesh, Myanmar, Sri Lanka or even Pakistan without keeping the states bordering them in the loop’ (Manoj, 2012). The Kutch, Saurashtra and North Gujarat have the potential of oil and gas both onshore and offshore. Apart from its strategic importance, the Creek is also very rich in fishing resources. Due to these pressures and complexities, the maritime boundary on Sir Creek is yet to be finalised, and the role of Gujarat in this context is critical.

CASE STUDY 6:  INDIAN BORDER STATES AND FOREIGN POLICY Many of the Indian states share borders with countries in the region, which further complicates the scenario. Hence, states like Mizoram, Manipur and Nagaland have a say in India’s Myanmar policy. This is also true of transnational

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groups like Indian and Pakistani Punjabis, Indian and Sri Lankan Tamils and the Indian population bordering the Terai region of Nepal. West Bengal’s unique geographic location has provided it a certain leverage in matters of India–Bangladesh relations. The state shares a 2,200 km border with Bangladesh. A variety of situations in bilateral ties are reflective of scenarios like the porous India–Bangladesh border, the massive illegal immigration flows, the pro-­Pakistani elements in Bangladesh and their spillover effect. Since the creation of Bangladesh, almost 15 million illegal migrants have entered India, both Muslim and Hindu. Some of the border districts of West Bengal like South 24 Parganas, North 24 Parganas and Malda have almost become extensions of Bangladesh. Given the mass illegal immigrations, the West Bengal government does influence the deportation policy of the country. This also helps prevent the possibility of bona fide Indian Bengalis being wrongfully accused and deported. Movements in the border areas are indeed problematic, as they have cross-­ border implications. Cross-­border movement of secessionists further aggravates the scenario. Such countries in the region with intentions of destabilising India seem to make hay while the sun shines. Yet from an overall perspective, many of the border states like Punjab, for example, are keen on strengthening ties with Pakistan, Tripura with Bangladesh, Bihar with Nepal and Tamil Nadu with Sri Lanka. But they also have to grapple with a variety of political and strategic challenges in the process, and the Central government has also ceased off. In a nutshell, the role of border states in the formulation and conduct of Indian foreign policy is increasingly being acknowledged.

Section B: States and Indian Foreign Policy under the National Democratic Alliance (NDA) Coalition Governments, Cooperative Federalism and Foreign PolicyMaking under the NDA Government Led by the BJP

Indian federalism is perceived to be ‘quasi-­federal’ in nature as outlined by Prof K.C. Wheare, since federal and unitary principles go hand-­in-­hand. The Seventh Schedule, List 1 allows the Parliament to decide on a variety of matters like defence, foreign affairs, security, trade representation and commerce, shipping, navigation and custom duties. Many scholars argue that India is federal with a unitary bias. Some have even termed it ‘centralised federalism’ or a ‘union model of federalism’. A strong centre was perceived from the perspective of maintaining the unity and integrity of India. The Indian federation is described as a ‘union of states’ in Article 1 of the Constitution.

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Dr. Ambedkar gave two reasons for this. Firstly, Indian federation is not the outcome of an agreement between the federating states. Secondly, the states in India do not have the right to secede (Ghosh, 2020). Both these have a direct bearing on India’s federal experience. ‘Competitive–Cooperative’ Federalism

At present, India is not able to incorporate cooperative federalism in its natural sense. One of the hindrances for this is the extent to which the centre tends to precede and override the autonomy of the states in the decision-­ making process. To alter this phenomenon, it becomes imperative and necessary to devise a new strategy deviating from the unitary features of government laid down in the Constitution (Singh, 2013). One needs to understand what is meant by ‘Competitive–Cooperative federalism’. Cooperative Federalism signifies a horizontal relationship between the Centre and the States, whereas Competitive Federalism signifies a vertical relationship between the States and the Central government, where states compete among themselves in the realm of bilateral and multilateral foreign relations (Kapoor & Pundir, 2022). This equal and equitable representation has shown immense potential. The COVID-­19 pandemic has shown that national exigency and contingency efforts are not enough. The States also need to and are playing a significant role in renewing the threads of Cooperative Federalism in India from the foreign policy perspective (Ghosh, 2020). With the ‘Meet the States’ initiative, foreign envoys now need to be aware of the domestic affairs of the states of India. This strategy is to work in tandem with the states to optimise policy options and possibilities. States through their political representation, NRIs, trade and investment needs and tourist flows can boost their interests as well as India’s federal outlook in the international comity of nations (Basu, 2016). States and Foreign Policy under the Narendra Modi Regime

India’s relations with its South Asian neighbours have largely revolved around border disputes, the cultural diaspora, foreign direct investment, trade and commerce and strategic concerns. The act of communicating the sovereign federal interest and seeking a political alliance determines the level of cooperation between countries in the region. India at present has territorial disputes with its neighbours, except for Bhutan. With Nepal, the open border which permits free movement was sought to be altered through former Nepali premier KP Oli’s unilateral redrawing of the maps. Today there is greater concern being shown about the cross-­border families and their livelihoods in the ‘borderlands’. Many states like Tamil Nadu

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and West Bengal have their concerns with Sri Lanka and Bangladesh, respectively. This has resulted in scenarios where the state governments have even blamed the coalition centre for not effectively dealing with these contentious issues in the past and present (Bagchi, 2003). Prime Minister Modi’s interests in building relations with the 13.5 million non-­resident Indians (NRIs) residing in various countries have reckoned them as a political and economic force to attract foreign investments and even to build bridges politically. This cultural diaspora tends to play a significant role in upholding the state’s interests at the global arena. This is particularly noticeable, for example, among the Keralites in the Gulf, Punjabis in Canada, Biharis in Mauritius and Gujaratis in the United States and the United Kingdom. The NRI Department, NRI Cell and the NRI policies garnered for the expats have boosted the tourism sector where India’s religious stature and cultural fabric has gained global recognition. Inbound remittances have also boosted the relations between centre and the states. War and/or domestic turbulence within the host states have created pressures and tensions in centre–state relations. Evacuation of Indians from war-­crippled nations like Afghanistan and Ukraine has been a credible achievement. There have been more than 30 evacuation missions between 1990 and 2017 to bring home some 110,000 citizens. The successful evacuation, in coordination with the MEA, has made it a win–win situation for both the NRIs and the Indian government (Jaffrelot, 2014). Hindrances in the sharing of revenue between the centre and states remain unresolved. To embrace the cooperative spirit, the centre and states need to allow better coordination on foreign direct investment and compliance with the international agreements. The Modi government sees this as the carrot and stick mechanism where certain states which are legally binding to the clauses see a favourable treatment towards them, unlike the other states where the BJP has a lesser majority in terms of political representation (Thakkar, 2021). Both the first and second terms of Prime Minister Modi have been distinguished by foreign visits, policy decisions, multilateral engagements, bilateral agreements and proactivism along borders in response to cross-­border, state-­ sponsored terrorism. States’ interests and contestations have come up in the context of illegal migration, border encroachment and resource-­sharing. The leverage among different stakeholders and the art of bargaining with the constituent units have shaped federal dynamics and complexities especially within states like West Bengal, the north-­eastern states, Punjab, Jammu & Kashmir, Tamil Nadu and Kerala. In this context, one sees the increasing dysfunctionality of the Inter-­State Council (ISC) and National Development Council, which needs to be amended and reworked to suit the interest of centre–state relations (Basu, 2016).

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Foreign Policies of Narendra Modi: Garnering a New Frontier in Asia: Issues of Focus

a. Neighbourhood First Policy of India: Narendra Modi’s synergetic collaboration with the Indian subcontinent in the strategic realms of economy, technology, research, education, transport corridors/connectivity, space, defence, environment, climate, etc. has leveraged cooperative initiatives with international organisations such as SAARC, BBIN, BIMSTEC and SASEC (Pant, 2014). b. Look East Policy: Amplifying on the lines of former Prime Minister Narasimha Rao’s Look East Policy curated in 1992 looks at forging strategic partnership and security cooperation during the days of Chinese hegemony in the region. It looks at countries like Vietnam and Japan, which are under tremendous pressure to formulate an anti-­China foreign policy. India’s ex-­Foreign Minister Sushma Swaraj had sought to formulate an Act East Policy on which the present Foreign Minister Jaishankar has been keenly working on (Nay, 2014). The focus of the policy is on the reimagined north-­eastern states. This imagination extends beyond the region, with the intention of bridging spaces. The Look East Policy has military, economic and political dimensions. c. Indian Ocean Outreach: India’s geographical nautical background has made it a hotspot for Chinese presence in its archipelagos. Chinese Premier Xi’s Belt and Road Initiative: A Maritime Silk Road Project has now made India move strategically through this counter-­initiative. This enhanced economic and security relationship is marked by Prime Minister Modi’s Yatraa to Mauritius, Seychelles and Sri Lanka. China has dominance over the South China Sea, so does India want to have its dominance over the Indian Ocean Region (IOR), and it seeks more countries to be a part of the initiative, though Maldives made a last-­minute cancellation to be a part of the same (Darshana, 2015). Economic Liberalisation and Its Impact

In the realm of International Relations and foreign policy, the importance of paradiplomacy is increasingly being recognised. It refers to the important role being played by sub-­state entities that is to say, states, cities and provinces representing the unitary and federal system, in resolving the issues of diplomacy (Jacob, 2016). The Modi government has applied the formula of paradiplomacy by not only bringing the traditional aspects of trade, tourism and culture but also working on post-­conflict reconciliation by involving the states/provinces. This is also the outcome of the influence of globalisation. Federalism is a key contributor to the growth of paradiplomacy (Pant & Tewari, 2017). Here, the sub-­ national actors (states/provinces) present

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themselves as a formal legal personality that engage in international policies that protect, preserve and promote the national/local as well as the international prerogatives and interests. Hence, decentralisation is the key which the Modi government has tapped for the foreign policy implementation in areas of trade, education, FDI, outsourcing of business etc. (Chengappa, 2021). Two propositions derive out of paradiplomacy • One of the problems the Modi government is facing, which is perhaps a shortcoming of paradiplomacy, is the like-­minded thinking and ideology of the central and state governments. Since India has a mixture of centre, left and right leaning political parties, decentralisation in its true sense is hampered. Many state government interests may not necessarily sync with those of the federal government in New Delhi. • The Central government may not be in a position of privilege, vis-­à-­vis the state governments to enhance ties with the neighbouring countries, as they share a similar historical, political, economic and geographical past. The Narendra Modi government, Harsh Pant argues, has brought paradiplomacy to the centre stage of India’s domestic and foreign policy-­making and implementation. In this context, what we are experiencing is the federalisation of Indian foreign policy. Four Select Issues: Tamil Nadu, West Bengal, Kerala and Gujarat

A key factor for paradiplomacy to work would be to address local sentiments. The 2014 election manifesto of the BJP had promised the renewal of relations with the states in the spirit of cooperative federalism (Pant & Tewari, 2017). The BJP suggested that ‘Team India’ shall not be limited to the Prime Minister-­led team sitting in Delhi but will also include Chief Ministers and other functionaries as equal partners (Jacob, 2016). In this context, some case studies can be taken: 1. An important issue of contention in India–Sri Lanka relations has to do with the case of fishermen in the disputed waters of Sri Lanka. Colombo has cited historical and traditional claims, which have made the dispute resolution mechanism fail at the Centre level. The government of Tamil Nadu resolved the crisis by giving the rights to fisherman, resolved human trafficking and made reservations/remittances for the refugees. Marine experts in India have argued that the establishment of a Palk Bay Authority with all the concerned stakeholders could make a difference. 2. In the case of Bangladesh and Bhutan, they recognise the importance of West Bengal in the negotiations along with the Central government. Since both sides share the Bengali-­ speaking diaspora, they have amicably

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resolved to a certain extent some issues of water sharing, inland water trade and infiltration. A landlocked country like Bhutan has been provided with port facilities and medical tourism. 3. Similarly, Kerala would be in an advantageous position to negotiate with the Gulf countries regarding employment opportunities along with New Delhi. As per statistics, there are nearly 5 million Keralites serving in the Gulf. The Gulf heavily depends on these non-­resident Keralites working within their borders. Kerala’s geographical position on old sea trade routes has revived the prominence of paradiplomacy, wherein trade and commerce is seen as an outcome of the assets of Kerala’s high literacy and good health services 4. The Global Investors Summit held biennially in the state of Gujarat presents India as a global destination for investment. The Modi government has worked to promote local self-­reliance through the ‘Make in India’ initiative, which has sought a lot of enthused participation and acknowledgement from foreign dignitaries. They are looking for investment collaborations and exploring opportunities for having sub-­ national engagements through economic cooperation. One can also say that Gujarat has substantially promoted the national interest by working on economic diplomacy at the federal level. The institutionalisation of this interface has been implemented through the following measures undertaken by the Modi government (Basu, 2016): a. Integration of states for foreign policy-­making through an ad hoc and functionalist manner rather than being structurally transformative and holistic in nature. b. The logic of federal diplomacy has been to promote economic development and attract FDI as a key, along with the focus on strategic security issues. c. To broaden the state’s role in the international comity of nations, the Modi government relies on the consensus-­based approach for making relevant institutional adjustments. Relevance of Geopolitics and Federal Foreign Policy Formulations

India’s policy towards Pakistan has a potential implication for border states like Gujarat, Jammu and Kashmir, Punjab and Rajasthan. India’s policy towards China has a potential implication on states like Arunachal Pradesh, Jammu and Kashmir, Uttar Pradesh, Uttarakhand and Sikkim. India’s policy towards Nepal has potential implications for Uttar Pradesh, Uttarakhand, Sikkim, Bihar and West Bengal. Similarly, India’s policy towards Bangladesh will impact Assam, Meghalaya, Mizoram, Tripura and West Bengal. Hence, it is very crucial to have an effective and well-­curated border management policy.

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Arvind Gupta, India’s former incumbent deputy National Security Advisor, believes that the border management includes resolving cross-­border terrorism, land disputes, human trafficking, illegal trade, drugs and arms smuggling and illegal migration so that India’s sovereignty is not at stake (Jain, 2014). Some of these issues can be developed through the following case studies: CASE STUDY 1:  INDIA-PAKISTAN ISSUES: LINE OF CONTROL AND TERRORIST INSURGENCIES AND ABROGATION OF ARTICLE 370 In Pakistan, the chequered phenomena of over-­centralisation have led the provincial governments being relatively diffident to cooperative federalism. Many of the provinces have been deprived of their social, economic, cultural and political rights, which has led to further polarisation between the federation and the provinces. The state governments have failed to imbibe the fabric of a federal covenant due to continuous political instability, economic crises, fiscal exploitation, state-­sponsored terrorism and ethnic tensions. Fuelled by staggering military dictators, the state’s sovereignty has deconstructed federalism where corruption, intolerance and marginalisation have led to social and political fractures of the realistic provincial and local autonomy (Raja & Hussain, 2015). The NDA government hoped to start afresh with Pakistan to resolve the long-­ pending border issue in Jammu and Kashmir. It also invited SAARC members for Prime Minister Modi’s swearing in 2014. But the relations soon nose-­dived and reached a dead-­end when the Indian army stationed in Uri was attacked by Pakistani infiltrators on 18 September 2016. The SAARC summit in Islamabad was boycotted by India as a result of a fallout due to the terrorist attacks. The relations crashed when Jaish-­e-­Mohammed, the Pakistan-­based terror outfit, staged yet another attack on the CRPF in February 2019 in Pulwama. India could take it no longer, and the resultant airstrike on Balakot shook Pakistan, as it hardly expected such an outcome (Sarwar, 2014). As a follow-­up to these developments, the back door brokered peace and restored some semblance of order along the LOC. Tensions however again resumed following the abrogation of Article 370, pertaining to Jammu and Kashmir, ending the special status given to Jammu & Kashmir. It was absorbed into the Indian Union under the Indian Constitution, a decision taken by the Union government. The state was divided as two Union Territories – Jammu & Kashmir and Ladakh – through the Jammu and Kashmir Reorganisation Act. This created a resentment in Pakistan, whereby they said that they would go to any extent to support the Kashmiris. The Pakistan National Assembly and Senate had a joint parliamentary sitting and condemned India’s move as illegal

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and reckless, which they claimed was against the rules of order enshrined in the UNSC. The so-­called coercive unilateral measure of India led to the downgrading of diplomatic relations. Pakistan’s High Commissioner to India was recalled, and subsequently the Indian High Commissioner to Pakistan was expelled. Even the Samjhauta and Thar Express trains were suspended. In August 2019, trade and all cultural exchanges were banned. They accused India of ethnic cleansing and raised the issue at the Security Council. Pakistan also wanted to take the dispute to the International Court of Justice (Khan & Cheema, 2017). The decision to abrogate Article 370 was historic, which had political, social, economic and strategic implications. Since then, even terror activities have drastically reduced in Jammu and Kashmir.

CASE STUDY 2: INDIA-CHINA BORDER TENSIONS China as a regional and global power has repeatedly threatened the territorial integrity of India. The Line of Actual Control is divided into three sectors, namely: 1. the Eastern Sector (Arunachal Pradesh and Sikkim), 2. Middle Sector (Uttarakhand and Himachal Pradesh) and 3. Western Sector (Ladakh), amounting to 3,488 kms. The 2017 skirmishes at the Doklam standoff between Indian Armed Forces and the People’s Liberation Army took place at the trijunction border called Donglang Caochang. India retaliated by Operation Juniper where the two bulldozers crossed the Sikkim border and stopped the Chinese construction menace. Subsequently, both the countries withdrew their troops, reducing the face off. This shows how cooperative federalism is challenging when a democratic and communist nation sits for negotiations (Jacob, 2014). In 2020, relations soured again with the Galwan valley skirmishes in the Pangong Lake in Ladakh, and the border between Sikkim and the Tibet Autonomous Region was seen as hotspots of invasion. India banned Chinese products as a retaliatory measure and China’s ‘nibble and negotiate policy’ further aggravated the situation. Further, in the North East, China has laid claims over 90,000 sq. km of Arunachal Pradesh, calling the area as ‘Zangnan’ referred to as ‘South Tibet’. India emphatically rejected this claim’ (Jacob, 2014). Besides national interests, these Chinese claims have impacted on the border states of India. On the trade front and in the spirit of cooperative federalism, Indian and Chinese provincial leaders have met on a number of occasions. China is presently one of India’s

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largest trading partners. Despite the political tensions between the two countries, New Delhi has hosted delegations from Sichuan, Xinjiang and Yunnan. China on the other hand has hosted Chief Ministers from Assam, Bihar, Gujarat and Karnataka in the last few years looking at business opportunities.

CASE STUDY 3:  INDIA-BANGLADESH LAND BORDER AGREEMENT: ENCLAVE ISSUE The Land Boundary Agreement discussion between the two countries was revived in 2014 when the then Foreign Minister Sushma Swaraj met her counterpart Abul Hassan Mahmood. Sushma Swaraj had discussions with Chief Minister Mamata Banerjee before her visit to Dhaka, applying a federal style of foreign policy. The two leaders discussed how to stop the terrorist forces from trespassing through the porous India–Bangla border. It has time-­and-­again tested the efficacy of democracy on the side of both the governments in resolving land boundary issues (Kumar, 2015). The chitmahals or pasha enclaves were decided to be exchanged with the Land Boundary Agreement (1974). Earlier, Bangladesh contained 102 Indian enclaves (21 Bangladesh counter-­enclaves included), and India had 71 Bangladeshi enclaves (three Indian counter-­ enclaves included). These adverse possessions were spread across the states of Assam, Meghalaya, Tripura and West Bengal. A revision for the same was passed as the 100th Amendment to the Constitution of India was ratified on 6 June 2015. As per this, India got 51 Bangladeshi enclaves and Bangladesh 111 Indian enclaves. The residents of these enclaves could choose to remain or move. This amicable dispute resolution through cooperation between the federal units took place between 31 July 2015 and 30 June 2016. India wanted to resolve the conflict peacefully, though it would lose land to Bangladesh. At present, Dahagram–Angarpota is the only remaining exclave of Bangladesh (Bhardwaj, 2014). Thus, the negotiations which could not resolve the issue over four decades was resolved through the operationalisation and institutionalisation of cooperative federalism, both at the central and the state level. Engaging the Indian states in the process has helped in resolving the issue.

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CASE STUDY 4:  INDIA-AFGHANISTAN ISSUES UNDER THE TALIBAN REGIME The Third Regional Security Dialogue on Afghanistan, at the level of National Security Advisers (NSAs) hosted on 10th September 2021 at New Delhi, issued the Delhi Declaration which condemned the terrorist attacks carried out by the Taliban post the US exit in Kunduz, Kandahar and Kabul. India has reinstated that Afghanistan would never become a safe haven for global terrorism. The challenge for the Modi government has been to form an open and truly inclusive government in Afghanistan (Delhi Declaration on Afghanistan, 10 November 2021). Afghanistan’s impetus for growth has been deterred by alienating rights of women, children and minority communities, thereby limiting the possibilities for the UN’s role in extending humanitarian assistance. Prime Minister Modi is looking for a cooperative note with the Taliban representatives to discuss in a non-­discriminatory manner for tackling extremism and drug trafficking. The Indian government since August 2021 has successfully reviewed and granted 300 e visas out of 60,000 Afghan applications for the Afghan Sikhs and Hindus who faced the threat of persecution. With the ground of Afghanistan unsafe, India is still trying to rebuild the relations it earlier had with President Ashraf Ghani. A top Qatar official revealed in June 2021 that an Indian delegation had paid a visit to Doha and met the Taliban leaders to negotiate and conciliate the relationship. However, India does not support state-­sponsored terrorism and hence has not recognised the Islamic Emirate of Afghanistan. In June 2022, the embassy of India was reopened in Kabul to facilitate dialogue. Cooperative Federalism works hand in hand with multilateralism, but this seems to find a place in the field of education, culture and science in Afghanistan. India wants Taliban to provide for an equitable, inclusive, affordable and holistic education for all including girls in the country. India firmly affirms that if Afghanistan takes a step forward by cooperating for the welfare of its citizens, then India would be happy to further extend help, as it has done in the past.

Conclusion

On the one hand, India is experiencing intermittent domestic turbulence, while on the other, India’s regional and global profile has been on the rise. Both these trends need not necessarily be in conflict. Constituency-­level pulls

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and pressures have now become the routine in domestic politics in India. Domestic policies have the effect of influencing and even changing the interactions between states in the realm of foreign policy. Many policies have multiple targets to the extent that a single policy can be both domestic and foreign at the same time (Singh & Verney, 2003). Coalition governments have provided the regional parties an opportunity to influence the formulation of foreign policy, vis-­à-­vis particular states. The states are slowly but surely making their presence felt in India’s foreign policy. The fallout affects both politics and policy. Foreign policy-­making and implementation is no longer the exclusive domain of the federal government. India’s foreign policy institutions are beginning to maintain stronger state-­ level contacts. Two major inferences can be drawn, that is to say, 1. States’ influence in foreign policy-­making need not necessarily be perceived negatively or as obstructionist all the time. 2. The role of the Indian states in foreign policy-­making does not necessarily translate into autonomy on foreign policy-­ making. The states tend to influence India’s foreign economic policy, but only within a limited ­ framework. A strong case is being made for institutionalising the process of deliberation, consultation and involvement of the states. Hence, there are clear indications to suggest that foreign policy institutions need to sustain closer ties with the states. Former Prime Minister Manmohan Singh had remarked at a press conference that ‘provincial sentiments cannot be wished away’. The propensity has been for domestic politics to override the normal foreign policy process. Indian foreign policy has become increasingly reflective of domestic policies. Hence, decisions and the follow up tend to become quite unpredictable. Moreover, coalition politics can even threaten the longevity of the coalition (Jaffrelot, 2014). India’s foreign policy challenges lie in its uncertain domestic politics. Perhaps, there is the need to insulate Indian foreign policy from narrow domestic political obsessions. Since coalitions are the order of the day, managing foreign policy with some coherence and credibility becomes a national priority and challenge. At the same time, ‘principles’ and ‘genuine differences’ need not be shut out. At any given time, domestic compulsions influence how states act and react to various foreign policy issues and events, and hence engaging state governments in foreign affairs can be a ‘force multiplier’ for Indian foreign policy. Bibliography Address by Ambassador Nirupama Rao. (March 22, 2012). Indian Foreign Policy in the 21st Century: Challenges and Opportunities. Hudson Institute. Anonymous. (2012). Changing Priorities: New dimensions of India’s Foreign Policy and National Security. Gurgaon: Aspen Institute, p. 5.

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Anonymous. (2022a). India will support democracy, stability in Sri Lanka: PM Modi. The Hindu Newspaper. https://www.thehindu.com/news/national/india-­will-­ support-­democracy-­stability-­in-­sri-­lanka-­modi/article65464659.ece Anonymous. (2022b). PM Modi Assures India’s “Unwavering Support” To Sri Lanka’s New PM. NDTV news. https://www.ndtv.com/india-­news/sri-­lanka-­crisis-­ pm-­modi-­assures-­indias-­unwavering-­support-­to-­sri-­lankas-­new-­pm-­3214682 Ashok, Malik, & Rory, Medcalf. (May 2011). India’s New World: Civil Society in the Making of Foreign Policy. Sydney: Lowy Institute for International Policy, p. 11. Bagchi, A. (2003). Rethinking Federalism: Changing Power Relations between the Center and the States. Publius, 33(4), 21–42. http://www.jstor.org/stable/3331194 Basu, P. P. (2016). Federalism and Foreign Policy in India—Experiences of UPA and NDA-­II Regimes. India Quarterly, 72(3), 216–234. https://www.jstor.org/ stable/48505503 Bhardwaj, S. (2014). An Agenda for the New Government: Policy Options for India in Bangladesh. Institute of Peace and Conflict Studies. http://www.jstor.org/stable/ resrep09161 Chandrasekharan, S. (January 8, 2012). Bangladesh-­India: The Teesta Mess and the Way Forward – Analysis. Eurasia View. www.eurasiareview.com/08012012-­ bangladesh-­india-­the-­teesta-­mess-­and-­the-­way-­forward.analysis/ Chatterjee, Shibashis, & Maitra, Sreya. (2022). How Indian foreign policy negotiates federalism: a case study of the role of the constituent states. How Indian foreign policy negotiates, 2, 13. http://dx.doi.org/10.12688/stomiedintrelat.17417.1 Chengappa, Bidanda. (2021). Involve States in foreign trade policy. Hindu Newspaper. https://www.thehindubusinessline.com/opinion/columns/involve-­states-­in-­foreign-­ trade-­policy/article24513208.ece Darshana, M. Baruah. (25 February 2015). Creating a Security Architecture for the Indian Ocean. The Diplomat. Creating a Security Architecture for the Indian Ocean. Delhi Declaration on Afghanistan, Ministry of External Affairs, 10 November 2021. https://www.mea.gov.in/bilateral-­documents.htm?dtl/34491/Delhi_Declaration_ on_Afghanistan Ghosh, Kumar Ambar. (2020). “The Paradox of ‘Centralised Federalism’: An Analysis of the Challenges to India’s Federal Design,” ORF Occasional Paper No. 272, Observer Research Foundation. Guichard, S. (2013). How Autonomous Are the Branches? A Study of Narendra Modi’s BJP. Economic and Political Weekly, 48(9), 40–46. http://www.jstor.org/ stable/23391280 Jacob, H. (2016). Putting the periphery at the Centre: Indian States’ Role in Foreign Policy. Carnegie Endowment for International Peace. http://www.jstor.org/stable/ resrep12868 Jacob, T. Jabin. (2014). China’s Provinces and Foreign Policy: Lessons and Implications for India and Its States. Institute of Chinese Studies. http://www.icsin. org/uploads/2015/05/15/68e6d38ad8b282ec7fae487cd5209ed9.pdf Jaffrelot, Christophe. (2014). A Modi Doctrine?. Carnegie Endowment for International Peace. https://carnegieendowment.org/2014/11/20/modi-­doctrine Jain, S. (2014). Narendra Modi: striving to be a pillar in a multipolar world. World Affairs: The Journal of International Issues, 18(4), 10–25. https://www.jstor.org/ stable/48505119 Kapoor, Amit, & Pundir, Ayushi. (2022). Cooperative competitive federalism. Economic Times. https://economictimes.indiatimes.com/news/politics-­and-­nation/ view-­cooperative-­competitive-­federalism/articleshow/93806020.cms

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PART III

Cooperative Federalism in Europe

8 COVID-19 AND ITS IMPACT ON COOPERATIVE FEDERALISM IN AUSTRIA* Peter Bußjäger and Mathias Eller

Introduction

Comparative federalism research (Watts, 2008, p. 117; Gamper, 2021, p. 113) has identified fundamental characteristics that are peculiar to each federal state. These include, among other things, intergovernmental relations between the federal government and the constituent units, which manifest themselves in institutions and procedures of cooperation and coordination (Germany Schnabel, 2020, p. 71). Intergovernmental relations are even considered to be the “lifeblood of federalism in practice” (Poirier & Saunders 2015, p. 4). Such interrelationships can be legally predetermined or informal in nature. Formal cooperation mechanisms include, for example, mutual participation in each other’s legislation. The Austrian Länder, for example, are given an indirect opportunity to participate in the federal legislative process through the Bundesrat (Federal Council) as the second legislative chamber (Schäffer, 1999, p. 31; Gamper, 2006, p. 802; Bußjäger, 2018, p. 185). In Austria, the Conference of Land Governors is another important informal body that serves as a mouthpiece for articulating the interests of the Länder, whereas the aforementioned Federal Council, as an institutionalized second chamber, only insufficiently fulfills the role actually assigned to it due to party–political interests (Bußjäger, 2015, p. 19). In the course of the COVID-­19 crisis, however, the Federal Council didn’t play a significant role – especially immediately after its outbreak (Gamper, 2020), while the Conference of Land Governors made demands in favor of the *  This chapter was finalized on 23 November 2021 and reflects the legal situation in Austria at that time. DOI: 10.4324/9781003461197-12

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Länder quite early on, for example, to ensure the financing of hospitals. The overall impact of the pandemic on federalism in Austria was nevertheless limited at first. As it will be described below, the legal framework of the fight against the pandemic in the federation does not fundamentally differ from that in a decentralized unitary state: In both cases, the central government bodies are responsible for governance, while the decentralized regional bodies are responsible for enforcement. Nevertheless, it quickly became clear, precisely because of this division of tasks, that successful crisis management requires good and intensive communication as well as coordinated measures by the federal and state governments (Schnabel & Hegele, 2021, p. 538). The sudden onset of the pandemic presented Austria’s administration as a whole with special challenges, as it had not been confronted with a comparable crisis in the past. Therefore, there was not only a lack of enforcement routine but also of administrative-­organizational precautions. This chapter will assess how the cooperation between the federal government and the states functioned in this unprecedented health crisis and what problems arose. In addition, the question will be addressed as to whether cooperative federalism in Austria has changed permanently as a result of the crisis. Cooperative Federalism in Austria during the COVID-19 Crisis Legal Framework

According to the Austrian Federal Constitution (Bundes-­Verfassungsgesetz = B-­VG), competences on health matters are distributed between the Federation and the Länder in general. However, the competence “public health” as laid down in Art 10 para 1 no 12 B-­VG includes, among other things, the handling of epidemics and pandemics and essentially entrusts the federal government with legislation and enforcement in this area. Within the framework of the so-­called indirect federal administration, the Länder participate in the enforcement of laws enacted by the federal government. This means that tasks that are originally assigned to the federal government for implementation under Art 10 B-­VG are – according to Art 102 para 1 B-­VG – carried out by organs or authorities of the Länder, apart from those matters enlisted in para 2, in which the federation is entitled to execute laws by own authorities. However, matters of public health do not fall within the scope of Art 102 para 2 B-­VG. Thus, the Land authorities function as federal authorities in this context. The Land governor acts as the hub in the indirect federal administration, who is bound by the instructions of the federal government or the competent federal minister and is responsible for implementation in the sphere of the Länder -Art 103 para 1 B-­VG (Bußjäger, 2021a). Indirect federal administration is an Austrian feature that has always been counted among the “constitutional peculiarities of the Austrian Federal Constitution” (Froehlich, 1921, p. 85; referring to this, Jabloner 2013, p. 23).

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As a result of the execution of federal laws in indirect federal administration, coordination between the federal government and the Länder is in itself indicated. Nevertheless, it seemed obvious that the structure of indirect federal administration would be particularly well-­suited for pandemic management because it would guarantee both central control by the responsible federal minister as the supreme body with comprehensive management authority and top-­level directives, as well as a regional response through the exercise of regional powers by the district administrative authorities and the Land governors. However, as will be shown below, the administrative organization had to struggle with considerable adjustment difficulties, whereby from the perspectives of the Länder, the insufficient control by the responsible federal minister, including appropriate guidelines for the implementation of the regulations, which were often issued at short notice, was often criticized. On the other hand, it was sometimes also criticized that Land authorities implemented the appropriate measures too late or too hesitant. Communication and Coordination Channels between the Federal Government and the Länder

There were two important channels of communication between the administrations of the federal government and the Länder: On the one hand, these are operational organizations from the governmental crisis and disaster management (SKKM) on federal and Land level. From the very beginning, the daily coordination between the federal government and the Länder was carried out by the SKKM staff in the Federal Ministry of the Interior with all other affected Federal Ministries and the Länder integrated. At the Länder level, a corresponding task force was set up within a very short time, based on the Land task forces available for disaster situations according to the various Land laws. Even though this task force is called the provincial task force, it is not the provincial task force for disasters (and thus an organ of the provincial administration), but rather a task force that works directly for the Land governor and the responsible government member in the indirect federal administration, whose activities are therefore also to be attributed to federal enforcement. In addition, there was and is a separate line of communication between the Länder and the competent federal ministry, on the one hand between the health authorities of the constituent units and the competent federal ministry at legal level (health law departments of the provinces), and on the other hand at technical level (involving the provincial health directorates). These staff exchanged information at short and regular intervals on the infection situation and also on the available legal means that can be used to contain the virus. However, it cannot be ruled out that these parallel communication channels have also led to friction losses, although empirical evidence of this is probably difficult to provide.

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The COVID-­19 crisis therefore led to more intensive networking between the federal and provincial levels, although the administration was able to make use of already existing channels intended for other disaster situations. In the process, various online meeting tools were made available, which made it possible to hold video meetings at short notice without any problems, whereas before the COVID-­19 crisis, video meetings were considered an absolute exception in the administration. In the end, it was possible for the decision-­makers to agree on the measures to be taken to contain the virus on an ongoing basis. Assessment of cooperation to date in the COVID-19 crisis

If one wants to evaluate the cooperation between the federal government, the Länder (and also the municipalities) during the COVID-­19 crisis, then one would observe that the findings differ depending on the time period chosen. In the first phase of the pandemic in spring 2020, the regional authorities appeared to be overburdened in part, which can be explained by the unclear legal basis at that time, although from an epidemiological point of view Austria managed the crisis comparatively well in the first months after the outbreak (Czypionka, 2020). Furthermore, a shift of power from the legislative to the executive was typical for times of crisis and could also be observed not only in Austria but also in other federal states like Switzerland (Belser, 2021). The Federal Minister for Social Affairs, Health, Care and Consumer Protection was granted far-­reaching powers, while the Länder were responsible for the implementation of the regulations. The first and second chambers of the Parliament, the National Council and the Federal Council, respectively, were thus eclipsed. However, this circumstance had little influence on the way of coordination between the levels. At the beginning of the pandemic, intergovernmental relations furthermore were characterized also politically by the conviction that successful pandemic control requires joint action at all levels. Moreover, there was hope that the health crisis would be a thing of the past in the second half of 2020, which also prompted the Austrian population to accept the restrictions on their fundamental rights and freedoms largely without any resistance. Communication and coordination between the federal government and the provinces at civil servant level functioned well in the first phase too; conflicts, if any, were not aired in public. All levels of government emphasized good cooperation despite the far-­ reaching powers of the federal government. Tensions between federal and land authorities have only become apparent in isolated cases. The most prominent example has been the case of the Tyrolean ski resort “Ischgl”, which has also been reported by numerous foreign media. The actions of the decision-­makers will probably have to be judicially assessed. In autumn 2020, however, critical voices increased against the COVID-­19 measures, which were becoming more stringent again. The hope of having

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overcome the health crisis in a few months turned out to be in vain. The introduction of the “Corona traffic light” was accompanied by numerous side noises; the enforcement was partly inconsistent in the Länder due to the only vague specifications of the federal government. Obviously, the decision-­makers had neglected to set the course for pandemic control for autumn/winter 2020 in the relatively quiet summer. Communication problems now also became apparent to the population, as these were increasingly played out in the media. The year 2021, in contrast, was primarily characterized by procuring the vaccine required for the Austrian population and organizing the administration of the vaccine doses. After an initially unclear distribution of tasks, the constituent units took over the responsibility for the vaccination organization, which, however, had to be developed and improved gradually (Bußjäger, 2021b). At the beginning, vaccination platforms were set up in the Länder, but no timeframe was set for when vaccination would actually take place. With the “green pass” now introduced in Austria, e-­government, which was previously mediocre at best, has also been improved. Potential for conflict between the federal government and the Länder was caused by the failure of the European Union to supply the member states with sufficient vaccines. Especially at the beginning of the vaccination campaign in Austria, this caused individual constituent units to proclaim more vaccines for “their” Land. However, this situation changed in the course of the year, as sufficient vaccines are now available for all those willing to be vaccinated. All in all, this phase which, by the way, was also true during the entire pandemic – was driven by the will of all actors at the federal and state level to overcome this health crisis as quickly as possible. It is therefore not surprising that the existing task forces continue to play a decisive role in the fight against the pandemic and will continue to do so until the end. The number of infections, which is now on the rise again, seems to put the coordination between the federal government and the Länder to another test. In the first days of November 2021, apparently uncoordinated statements by top politicians at federal and state level caused confusion among the population. In expert circles, there was even talk of a communication disaster, especially concerning the federal government. In a press conference, the Federal Chancellor held out the prospect of a nationwide “lockdown” for all unvaccinated persons; shortly afterward, the Minister of Health wanted to confirm such a “lockdown” only for the Länder Upper Austria and Salzburg. The pressure built up by the new wave of infections on the acting persons seems to have a negative effect on their quality of coordination. However, decision makers should realize that stringent crisis communication creates trust among the population, while poor communication has the opposite effect. Regardless of the coordination and cooperation deficits that are still to be discussed in detail, the willingness to find solutions with each other has always

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remained throughout the crisis so far. This mindset will also be necessary to best overcome the further challenges associated with the COVID-­19 crisis, which are not only of health nature but above all of economics nature. Coordination and Communication Deficits Poor Preparation and Insufficient Legal Basis

In the COVID-­19 crisis, which has now lasted for almost two years, obvious coordination and communication deficits between the local authorities and the federal government became apparent, which were initially due to the insufficient legal basis and poor preparation at the time of the outbreak of the crisis. After the realization had matured that the “Epidemic Act” passed in 1950 was not a suitable basis for dealing with the pandemic, a so-­called COVID-­19-­Measures Act was passed under considerable time pressure, providing specific legal bases for (partly temporary) official measures to combat the spread of the disease, which were added to the measures of the “Epidemic Act”. The regular amendments to the “COVID-­19 Measures Act” led to an increasingly complex legal situation and numerous legal ambiguities. In particular, the relationship between the “Epidemic Act” and the “COVID-­19-­ Measures Act” was not always clear at neuralgic points. As a direct consequence, the necessary clarifications for the enforcing authorities were omitted by the federal government. The decrees referred to as internal directives were often unclear in terms of content and difficult to implement. In addition, there were also significant difficulties in the use of IT, which have not been resolved to date: The EMS (electronic reporting system) was adapted over the months but was not an adequate system for processing and documenting thousands of infection cases, especially in the early days. However, this circumstance ultimately also leads to the fact that it is difficult to make valid forecasts regarding the further course of the pandemic. Without a solid basis of figures, policy-­makers lack an important basis for decision-­making. So far, deficits in this area could only be solved satisfactorily to a limited extent. Weaknesses in Governance

In Austria, new measures to control the pandemic were announced by the federal government in press conferences that were often called in a hurry and in which the administrative authorities responsible for enforcement had no prior knowledge also appeared to be problematic for both the legislative and executive branches. For example, new ordinances and amendments to ordinances were issued at such short notice without sufficient prior information that they were often not announced in the Federal Law Gazette until the evening of the day before they took effect. This deprived the enforcement

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authorities of the possibility to ensure a consistent and proper enforcement of the respective ordinances from the very beginning, especially since the ­issuance of ordinances was practically never accompanied by corresponding clear enforcement instructions to the competent sub-­authorities. While this approach may often be justified by the dynamics of the situation development, as it is characteristic of the corona pandemic, it remains unsatisfactory and has sometimes led to serious consequences, as the example of the border controls in Carinthia in the summer of 2020 showed, which led to a massive traffic jam chaos. A current example is the regulations of the “COVID-­19 opening ordinance” concerning gatherings, which provide for notification obligations to the competent district administrative authority already from a very less number of people. There is a lack of clear enforcement instructions from the federal government, especially with regard to what obligations such a notification triggers for the health authorities. In addition, it is to be deplored that a long-­term strategy of the federal government in connection with the fight against the pandemic has been lacking so far. This can be not only seen in the numerous amendments to the “COVID-­19 Measures Act “and other occasion-­related legislative and regulatory acts but also in the different announcements of which measures are to be taken against the now again aggravated COVID-­19 situation. This is certainly a weakness of the Austrian administration in general, which lacks a strategic orientation in several fields. Nevertheless, it must be noted that the health authorities did and do their utmost, within the scope of their professional and personal possibilities, to ensure orderly enforcement of measures in the context of pandemic control. At least, a strategic role with regard to vaccination has now been taken on by the national vaccination panel. It consists of medical experts from various disciplines and advises the Federal Minister of Social Affairs, Health, Care, and Consumer Protection on vaccination recommendations. The Länder also needed some time to adequately adjust to the challenges of the COVID-­19 crisis. Nevertheless, the appropriate organizational, material, and personnel arrangements had to be made as quickly as possible. For the contact tracing, for example, it was necessary to open test lanes, organize mass testing and vaccination, and ensure ongoing screening. In doing so, the administration in the Länder could not fall back on any known structures. Consequently, these had to be created under considerable time pressure and the procedures had to be “practiced” internally. Although, from today’s perspective, this has been relatively successful, it must be pointed out that weaknesses in control were also evident at the state level. Nevertheless, the findings should not be too harsh, especially since times of crisis always pose special challenges for an administration, and therefore a certain amount of error calculation must always be taken into account.

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Traffic Light System

The so called Corona traffic light, which was officially presented by the federal government on 4 September 2020, is a prime example of the functioning of cooperative federalism in Austria, although the introduction phase turned out to be very bumpy. However, this was not so much due to the way the traffic lights work, but rather to the fact that the legal basis for it was only created some weeks later. The “traffic light system” provides for Länder or district-­based measures against the spreading of the Sars-­ CoV-­ 2 virus. “Green” denotes the least required precautions, while “red” contains the most stringent precautions. “Orange”, “yellow” and “yellow-­green” are gradations. What measures have to be taken is decided by a commission composed of representatives of the Federal Ministry for Health, experts of the Agency for Health and Food security, medical experts from universities and representatives of the Länder. Its composition clearly reflects cooperative federalism in Austria. The commission gives advice and recommendations to the Federal Minister for Health. Based on its recommendations, the Minister can give instructions to the Land Governors who would have to implement the directives by decrees for the Land concerned or would have to instruct the district authorities to implement such measures in their respective territory (Bußjäger & Eller, 2021). On the other hand, the “traffic light system” is also a challenge for the federal system in Austria because – apart from ministerial specifications – stricter regulations are also possible in the provinces or at district level. It has to be taken into account that more rigid measures are partly not only aimed at improving the epidemiological situation but also at pursuing political interests. At this point, for example, the state of Vienna, led by the Social Democratic Party, should be mentioned, which not only wants to emancipate itself from the federal level through stricter measures but also politically. Nevertheless, after initial difficulties, the “traffic light system” now seems to be working better. Since Austria is faced with another COVID-­19 wave with an increasing infection and hospitalization rate, the Corona traffic light (as of 16 November 2021) now shows “red” for the whole federal territory. Thus, not only is a 3-­G proof (tested, vaccinated or recovered) required at the workplace, but also renewed restrictions on public life were decided again. The situation in the hospitals even seems to be so worrying that further restrictions cannot be ruled out in the next couple of weeks. However, the tightened regulations, some of which apply in different provinces and districts, contribute to a somewhat confusing legal situation, especially because the epidemiological situation is developing dynamically and changes almost weekly. It is therefore still necessary for the federal government and the Länder to coordinate intensively and continuously on measures to be taken in the future. Although the coordination deficits could be reduced

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compared to the beginning of the crisis, there is still a need for improvement. One example of this is the delayed requirements of the federal government with regard to the upcoming winter tourism season (3rd COVID-­19 Measures Act, Federal Law Gazette II 441/2021). Due to the current sharp rise in the number of infections, health authorities were again not able to trace chains of infection and to segregate those tested positive for COVID-­19. After the COVID-­19 situation in hospitals worsened dramatically, the federal government decided on another lockdown, starting from 22 November 2021. This lockdown is expected to last for at least 20 days. The Länder are now faced with the challenge of providing enough intensive care beds for those suffering from COVID-­19. A New Era of Cooperative Federalism in Austria?

As already mentioned, the intergovernmental relations between the center (the federal government) and the entities (the states) in federal states play a very important role. There is no doubt that the COVID-­19 crisis has led to an intensification of communication between the territorial authorities, which was also necessary in order to take appropriate measures in the fight against the epidemic. It should also be noted that the channels of communication have shifted to the virtual world. This development is not only due to the fact that a further spread of the virus in the circle of decision-­makers could be avoided but was probably also due to pragmatic reasons: For example, the dynamics of the infection had to be regularly countered with video conferences convened at short notice in order to ensure timely solutions. It can therefore be assumed that virtual meetings will also be pushed in the Austrian administration after the end of the pandemic. The advantages are obvious: Not being tied to a specific location, uncomplicated organization, time savings due to reduced travel expenses, etc. On the other hand, it is doubtful whether the fight against the pandemic also heralded a new era of cooperative federalism in Austria. Nevertheless, it could be observed that vertical cooperation between the regional authorities in Austria was strengthened in many ways and that informal communication possibilities clearly gained in importance. In this respect, it can be stated that the advancing digitalization will continue to have a lasting influence on the way in which the actors in the Austrian administration cooperate in the future. Apart from this, it will also be possible to fall back on the (implementation) experience gained in future crises. This suggests that the response to new challenges will be at least similar. On the legal level, the first steps have recently been taken. With the planned “Crisis Security Act”, all threads are to come together in a specially created federal situation center in the future in the event of a crisis, in order to enable the responsible ministries to

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manage crises efficiently and to inform the population quickly. However, the internal management of crises in the Länder remains unaffected by this law. The extent to which the “Crisis Security Act” will affect federalism in Austria therefore remains open for the time being. Excursus: The (Socio-) Economic Consequences of the Crisis

Despite the fairly good performance in controlling infection rates during the first wave of the pandemic, the Austrian economy was hit heavily by the virus control measures. The gross national product decreased by about 8%. Unemployment increased by leaps and bounds, as did “short-­time working,”1 which is an attempt to encourage companies to retain their employees rather than lay them off. The budgets of the Federation as well as those of the Länder and municipalities suddenly were and are still out of balance (Bußjäger & Eller, 2021, p. 32). The perception that the Austrian government did not react quickly or only inadequately to the economic consequences of the health crisis must be put into perspective in view of the numerous measures taken. With fixed cost subsidies, equalization payments and aid funds – such as the “Economic Stimulus Act 2020” – several attempts were made in Austria to relieve the budgets of the Länder and municipalities. In this area, both the federal government and the Länder primarily act within the framework of Art. 17 B-­VG.2 However, some Länder were more affected by the impact of the COVID-­ 19-­crisis than others. This is particularly true for those where the tourism sector plays a prominent role (e.g., Tyrol, Vorarlberg, and Salzburg). It could be observed that these Länder made additional funding available over and above the federal financial aid.3 In addition, financial support packages were adopted in all Länder, but most of them were not aimed at strengthening individual economic sectors, but rather at improving the financial situation of the municipalities. The latter were faced with increasing expenditures and considerably decreasing tax revenues. As a result, their short-­to medium-­term liquidity was at risk and required action. Both the Federal and Land governments are still attempting to mitigate the economic consequences of the crisis through various financial support measures. However, the long-­term consequences for the Austrian economy cannot yet be estimated, but it is obvious that after the crisis has been overcome, savings will have to be made at all levels of government. Undoubtedly, the COVID-­19 pandemic and the official measures taken to contain it left a clear mark on the labor market in Austria in 2020 and 2021.4 For example, increases in the unemployment rate were directly related to “lockdown” measures. Nevertheless, the labor market recovered surprisingly well with the onset of summer tourism in both years. Further development will therefore also depend on whether or not further restrictive COVID-­19 measures are taken in the future.

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Notes 1 Short-­time working or short time is a governmental unemployment insurance system in which private-­sector employees agree to or are forced to accept a reduction in working time and pay, with the state making up for all or part of the lost wages. 2 This provision stipulates that the federal government and the Länder have full private-­law powers that are not tied to the distribution of competences (Art. 10 to 15 B-­VG). 3 The Tyrolean tourism promotion was strengthened by an economic stimulus bonus of up to 5% within the framework of investment promotion. For this measure, additional budget funds amounting to € 2,000,000 were made available for 2020. 4 The average unemployment rate in 2021 was 8.0%, compared to an average of 7.4% before the crisis in 2019. See Statistik Austria (www.statistik.at).

References Belser, Eva Maria, Einheit und Vielfalt in Zeiten der Pandemie. (2021). Blog available at: https://foederalismus.at/blog/einheit-­und-­vielfalt-­in-­zeiten-­der-­pandemie_256. php Bußjäger, Peter. (2015). Austria’s Cooperative Federalism, in: Bischof/Karlhofer (eds.), Austrian Federalism in Comparative Perspective. 11–33. Bußjäger, Peter. (2018). The Austrian Bundesrat–Imperfect and Unreformed, in: Gamper (ed.), Representing Regions–Challenging Bicameralism, Perspectives on Federalism Vol. 10/2. 182–197, available at: http://on-­federalism.eu/­ attachments/004_Volume%2010%20-­%20issue%202%20-­%202018.pdf Bußjäger, Peter. (2021a). COVID-­19 crisis challenging Austria’s cooperative federalism. Blog available at: https://foederalismus.at/blog/covid-­19-­crisis-­challenging-­ austria%E2%80%99s-­cooperative-­federalism_235.php Bußjäger, Peter. (2021b). Kommentar: NichtsGenaues, in: VorarlbergerNachrichtenvom 29/1. available at: https://www.vn.at/vorarlberg/2021/01/29/nichts-­genaues.vn Bußjäger, Peter and Eller, Mathias. (2021). The impact of COVID-­19 on the Austrian federal system, in: Chattopadhyay et al. (eds.) Federalism and the Response to COVID-­19. A Comparative Analysis. 30–38. Czypionka, Thomas. (2020). Austria’s Response to the Coronavirus Pandemic – a second perspective. Blog available at: https://www.cambridge.org/core/blog/ 2020/04/12/austrias-­response-­to-­the-coronavirus-­pandemic-­a-­second-­perspective/ Froehlich, Georg. (1921). Staatsrechtliche Eigentümlichkeiten der österreichischenBundesverfassung, ZeitschriftfürVerwaltung. 81–90. Gamper, Anna. (2006). The Austrian Bundesrat, in: Luther/Passaglia/Tarchi (eds.), A World of Second Chambers. 781–828. Gamper, Anna. (2020). Austrian Federalism and the Corona Pandemic. Blog available at: https://foederalismus.at/blog/austrian-­federalism-­and-­the-­corona-­pandemic_237. php Gamper, Anna. (2021). Staat und Verfassung. ISBN 978-­3-­7089-­1102-­1. 5th edition. Jabloner, Clemens, Bundesminister und mittelbareBundesverwaltung, in: Olechowski/Zeleny (eds.). (2013). Methodenreinheit und Erkenntnisvielfalt. 23–46. Poirier, Johanne and Saunders, Cheryl. (2015). Comparing Intergovernmental Relations in Federal Systems: An Introduction, in: Poirier/Saunders/Kincaid (eds.). Intergovernmental Relations in Federal Systems. Comparative Structures and Dynamics. 1–13.

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Schäffer, Heinz. (1999). The Austrian Bundesrat: Constitutional Law – Political Reality – Reform Ideas, in: Karpen (ed.). Role and Function of the Second Chamber. 25–55. Schnabel, Johanna. (2020). The Covid-­19 crisis and German Federalism, in: Cuadernos Manuel Giménez Abad. Available at: https://www.fundacionmgimenezabad. es/sites/default/files/Publicar/documentacion/documentos/2020/20201214_tp_ schnabel_j_en_o.pdf Schnabel, Johanna and Hegele, Yvonne. (2021). Explaining Intergovernmental Coordination during the COVID-­19 Pandemic: Responses in Australia, Canada, Germany, and Switzerland, Publius. 51/4. 537–569. Watts, Ronald L. (2008). Comparing Federal Systems. 3rd edition.

9 POLITICAL ECONOMY OF COOPERATIVE FEDERALISM IN GERMANY Issues and Implementation Roland Sturm

Introduction

The political economy of federalism manifests itself in patterns of economic geography. It creates regions that often follow more of a functional than a constitutional logic. In contrast to cooperative federalism’s legal efforts to accommodate social conflict by decentralization and power-­sharing, economic decentralization is only sometimes supportive of constitutional federalism. Often it is anarchic, less predictable, more dynamic and also dependent on international influence, above all the imperatives of globalization. Four crucial aspects of the political economy of federalism will be discussed here. We start from the observation that economic regions are not of comparable importance. This creates regional imbalances that challenge at least the traditional view of federations as contracts between equals. This then leads us to the question of the relationship between economic challenges and their territorial consequences. As a next step, we discuss the rationale of economic regionalism, its economic justifications and economic logic. The fourth section deals with the consequences of globalization for regional economic differences and regional policy responses. Co-operative Federalism and the Challenge of Regional Imbalances

Federalism is about the politicization of regional differences and consensus-­ building. Regional economic differences have the potential to shape conflicts in federations, but recently they have not played a prominent role in federalism research. The strategies for overcoming regional economic conflict were rarely used as pro-­federalism arguments. Federalism as such only creates DOI: 10.4324/9781003461197-13

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economic differences, when subnational governments have wide-­ ranging competences in economic policies. In federations, economic decision-­making is, however, in most cases in the hands of the central government that creates and guarantees a national market without regional hurdles for the free exchange of goods and services and economic co-­operation. After a short period in the 1990s when books and articles were published on the political economy of regionalism (Keating & Loughlin, 1997), research moved on to identity politics and administrative challenges of policy coordination in federal states, such as multi-­level governance (Piattoni, 2009). Economic geography remains important, however. It mirrors the regional economic landscape. Economic differences exist in every federal state. In contrast to identity politics, they are often seen as apolitical, as temporary imbalances of national markets or as side effects of political interventions that failed to create a level playing field. Neoclassical growth theory assumes that poorer regions grow more rapidly than richer regions because they reap larger returns from additional investments initiated by regional policies (James & Krieckhaus, 2008, p. 188). This assumption has been regularly criticized because it lacks empirical evidence. The Italian Mezzogiorno is a typical example of an economically backward region that despite lavish national and European funding did not catch up. Regional economic differences become a political problem either because certain regions are overdeveloped compared to the national average of economic strength, sometimes even compared to the economic fortunes of the center (capital) of a state, or because they are economically underdeveloped. Developed regions, such as Bavaria, Catalonia, Flanders, Victoria and New South Wales in Australia or the Western provinces of Canada, thrive on the narrative that federalism forces them to cofinance poorer regions. In the Canadian West, the combination of economic prosperity in the 1970s and early 1980s, the loss of control over provincial resources and a lack of party political representation of the West led to the phenomenon of Western alienation and the creation of regional political parties. Some of them were even dedicated to the separation of the Western provinces from Canada (Pratt & Stevenson, 1981). Richer regions argue that as a consequence of forced “national solidarity”, they lose resources and are held back in their economic development. The logical conclusion when it comes to politics can only be to ask for greater regional financial autonomy and to get rid of transfer payments to less developed regions. This conclusion is not very attractive for underdeveloped regions. They need central state support and are ready to give up regional autonomy for federal aid. In Germany’s cooperative federalism, for example, most of the poorer states in the East are much more inclined to accept a greater role of the federal government in policy-­making than the states in the prosperous South. Critics of a strong degree of regional fiscal autonomy see a moral hazard problem when central state

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bailouts are possible and support regional fiscal autonomy only if it is accompanied by hard budgetary constraints: “If the central government bails out subnational ones from their financial obligations, macroeconomic outcomes tend to worsen while subnational units become more transfer dependent” (Beramendi, 2007, p. 765). The moral hazard problem gains importance when poor regions depend on industries in decline. Industries in decline justify regional conversion policies of the center. But often central state interventions for political reasons only postpone the end of an uncompetitive industrial sector. Fiscal equalization schemes, be they vertical (financed by the center, which is the rule) or horizontal (financed by the solidarity of states on the subnational level, e.g., in Switzerland), are supposed to overcome regional backwardness. In Switzerland, cantons that are disadvantaged, for example, because of their geography, do not automatically qualify for full equalization. The extent of equalization depends on a canton’s efforts to be successful economically and to catch up to the more advanced cantons. Still, the richer cantons keep complaining about being forced to share resources (Stöckli, 2019). There is always the danger that resource transfers are too specific and result in political steering by the center. In Canada, equalization therefore aims to fight regional inequalities without threatening provincial autonomy. The equalization program uses territorial indicators instead of task-­specific indicators to avoid too much intrusion into provincial preferences (Lecours & Béland 2009, p. 571). The Canadian federal equalization program has three main economic objectives: 1 Reconciliation of equal social citizenship rights with the advantages of decentralized management (…) 2 Reconciliation of intergovernmental income redistribution with the benefits of own-­source [provincial] taxation; (…) 3 Provision of interprovincial insurance: The funding of core social programs should remain stable (Richards, 2007, p. 84–85). In general, fiscal equalization programs should not aim at equality with respect to the fiscal strength of the constituent parts of a federation. Equality as an aim may enter the federal logic, however, via another norm, namely, the preconditions of a welfare state. In Germany, for example, this has had the effect that the income of backward Länder was not only increased to the financial level of the richer ones, but the poor Länder were overcompensated. At the end of the process of fiscal equalization, the low-­ achievers were better off than the high-­level performers. Not all underdeveloped regions share the feeling that their future lies in (more) support by the center. Social scientists and representatives of some of these regions, for example, Scotland or Québec, have argued that economic underdevelopment is not the direct result of regional economic deficits but is

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caused by a quasi-­colonial exploitation of the region by the center. Michael Hechter (1975) spoke of “internal colonialism,” and Tom Nairn (1977, p. 55) pointed out that the modernization of the United Kingdom’s post-­war economy led to a deindustrialization of Scotland that was not in the region’s interest. Critics remarked that “internal colonialism did not survive as a theory” (Keating, 2008, p. 64), but stressed that uneven development remained a central element for understanding territorial politics. Economic regionalism as justification for decentralization and federalism in both underdeveloped and overdeveloped territories therefore not only makes sense, but it is often the only way to create national cohesion and stability. On the international level, the EU’s cohesion policy fulfills a similar function (Baun & Marek, 2008). The creation of national cohesion in Germany after unification, for example, led to a new form of territorial management. The territory of the former GDR was integrated as a highpriority funding area into the EU structural funds. This not only improved the quality and competitiveness of the regional economies in the East of Germany, it also empowered regional governments there. Federalism worked as a factor of political integration when financial support via the EU coincided with the federalization of the GDR (Anderson, 1996). The Influence of Territory

To uphold cohesion in a nation-­state, it is necessary to acknowledge and accept regional economic differences. Differences create the necessity of territorial management that can come in different forms and may include party political integration (the regionalization of national party systems and regional parties), conflict intermediation by center–periphery institutions, an informal integration of regional economic preferences by clientelistic networks and concessions to regional demands (Keating, 2008, p. 66). Sometimes, economic regionalism is seen by the center as a task of economic policy, sometimes as a consequence of a lack of central-­state efficiency and sometimes as a budget problem. In the latter case, regions are expected to “auto-­develop” themselves by inventing and developing economic strategies that allow regions to act strategically in a given context. The difficult decision for policy makers with regard to economic problems is to decide whether problems are “of” a region or “in” a region. The latter should provoke regional activities, whereas in the former decentralization comes under pressure. Territorial equivalence and the concentration of tasks relevant for the areas, is of limited significance. There are many competences in public policy making that cannot be scaled down to the regional level, are too costly for a region or lack sufficient regional resources. Economic regionalism is a typical case. Still, regions have an incentive to develop their regional economies autonomously.

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Above all, the principles of accountability and democratic control motivate regional governments to take initiatives. The FOCJ (functional overlapping competing jurisdictions) approach (Frey & Eichenberger, 1999) argues differently. Policies should be controlled on a regional level. Not the competences should be made compatible with territories of democratic decision-­making, but the shape and size of regions should vary by function, that is, the needs of policy making for the variety of tasks the public policy has to shoulder. In this way, a new type of economics based federalism comes into existence. The Rationale of Economic Regionalism

Boundaries of economic regions do not automatically coincide with boundaries of federalism. In Germany, for example, the boundary between Baden-­ Württemberg and Rhineland-­Palatinate in Ludwigshafen/Mannheim artificially separates two parts of one industrial region. Instead of a federalism reform as remedy to overcome hurdles for cross-­state cooperation, a metro-­region RhineNeckar was formed, which also includes parts of neighboring Hesse (BeuttlerBohn, 2017). Olberding (2002) has shown for the United States that cooperation often has local roots. Motives for regional partnerships include economic gains but also past experiences of shared policies. There is obviously more than one rationale for regional economic cooperation. And, the latter happens in the framework of federalism, but also outside. Cooperative federalism is, however, a precondition for economic partnerships from below. In a centralized state with top down decision-­making, regional economic decision making is hardly possible. Economic regionalism is more flexible than federalism, when it comes to the definition of what is a region, not least because economic change that defines regions is faster than political change (Piattoni, 2009, p. 171). It is also remarkable that economic regions easily disregard national boundaries. Economic regions are defined by an economic model (Alberta, the oil state) and or an economic mode of production. They develop specific networks made up of actors in bureaucracies, civil society and the sphere of (local and regional) politics. Sometimes, these actors share a political concept such as the neo-­corporatist state, but most of the time they merely search for pragmatic solutions to make the most of regional potentials. Baden-­Württemberg in Germany, for example, has a reputation to anchor its regional economic identity in the successes of small and medium sized enterprises (SMEs, the Mittelstand). The strategy behind SME-­innovation is to develop the endogenous potential of a region. This is more than the economy: it includes the building up of social capital. As Keating (1997, p. 38) argues “such a rational form of territorial identity can provide the social cohesion necessary to bridge individual and collective forms of rationality.” In practical terms, this means excellent professional training and an identification of workers and enterprises with their region. It has

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even been argued that a lack of social capital will distort the positive effects of federalism on the economy (Beramendi, 2007, p. 764). As Christopher Harvie (1999, p. 230) observed: “Mythos Mittelstand becomes something out of Brothers Grimm. The German South West’s apparent security and solidarity is admired by the Scots and Welsh”. A similar story can be told for the shoe and design industries in Northern Italy. The region and its successes were used by the then Lega Nord to claim a special status for the artificially invented region of Padania (Gómez-ReinoCachafeiro, 2002). This region ignored traditional regional boundaries and was opposed to solidarity with the Italian South. Its defenders tried to find historical roots for their vehicle of economic regionalism. The asset specificity of a regional production system can, however, also turn into a disadvantage whenever worldwide product markets change or breakdown. Where federalism allows a broad range of regional autonomy in economic policies like, for example, in Canada, policy experimentation is possible. Regional governments may redefine governance. In the 1990s, British Columbia used tax revenues from its large resource sector to finance its jobs and investment strategies. Ontario stressed structural changes to its economy, whereas Québec used a mix of state-­owned enterprises and science and technology innovation to increase her share of high-­ value added production (Drache, 1999). What was always necessary was to find the adequate size of regional projects, which allowed regional self-­rule with a minimum involvement of the central government. “Postmodern regionalism” is another term for “economic regionalism.” According to Schmitt-­Egner (2002, p. 190) it is not based on a social movement but on a strategy of development (i.e. material reproduction), where the regional actor aims to foster the regional economy by promoting the competitiveness of small and medium-­sized enterprises (SMEs) and regional locations within the framework of globalization. This strategy is based on the concept of small action spaces such as industrial districts or milieuxinnovatives as local answers to global challenges. Whether this kind of “functional regionalism” is under pressure to provide evidence of cultural cohesion” (Parks & Elcock, 2000, p. 88) in order to bolster a case for increased autonomy can be debated. It has been pointed out, however, that meaningful economic regionalism always has the counterpart of a responsive national environment. To look at economic regionalism without taking national strategies of regional development into account misses an important link: “The most successful regional economies are those where regional authorities can draw strong support from the national level and both levels work effectively to enhance their innovative potential” (Vavakova & Wolfe, 1999, p. 126).

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In the logic of Tiebout’s theory of local expenditures, the success or failure of economic regionalism has consequences for subnational units of a federation. The assumption is that these units compete economically. Citizens decide in favor of their personal well-­being by voting with their feet or in Tiebout’s words: “The consumer voter may be viewed as picking that community which best satisfies his preference pattern” (1965, p. 418). Personal mobility, even in the United States, is, however, not only dependent on the benefits of living in one state or the disadvantages of living in another. Still, for federalism, the debate on a race to the top, for example, in the scientific excellence of states, or on a race to the bottom, for example, in their social policies, is not trivial. Though the economic pre-­conditions for the economic future of states are heavily influenced by the federation itself, its subnational units cannot avoid comparison, which leads to political consequences. In the case of welfare benefits in US federalism, the assumption of a race to the bottom was challenged. Though “competitive federalism” is a fact, the expected “welfare migration” to the states with better welfare provisions cannot be proven. Empirical work demonstrates that states do not prefer undercutting one another to avoid becoming welfare magnets, but instead they wish to increase their welfare benefits, but hesitate until neighboring states do the same (Volden, 2002). Another consequence of regional control of budgeting in federal countries can be a misuse of regional funds. In the worst case, this is corruption and less offensive. It is regional patronage that is made possible by decentralization. It has been argued that above all, decision-­makers in richer regions have access to illegal practices or practices that tend to be influenced by party political considerations. Research on Spain has shown that this is not necessarily the case. Here, economically advanced regions tend to have their own regional party system. The logic of party political competition in the region directs regional attention to the cofunding of regional preferences by the national level, which excludes the reliance on federal patronage to some extent. Richer regions tend to prioritize regional level policy making authority over distributive politics (Gordin, 2009). Economic theories of federalism tend to see federalism not as a potential problem but as a remedy for regional resource mis-­allocation. Welfare economists argue that a decentralized institutional design facilitates an optimal allocation of resources. Public choice theorists stress that federalism allows better monitoring of incumbents by markets and voters. As a result, corruption is less likely to occur, the public sector is smaller and markets work more efficiently (Beramendi, 2007, p. 762–763). The debate on neoliberalism sees cooperative federalism as a device to use institutional reforms to open up the economy for more market oriented public policies. An extreme case was former Canadian Prime Minister Stephen Harper’s “open federalism” doctrine that implied “that the federal government should have the ability to prevent

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the provinces from creating barriers to the free movement of goods, labour and capital across their borders” (Harmes, 2007, p. 418). Open federalism aimed at the centralization of basic economic policies, such as the protection of property rights and all aspects (monetary union, no trade barriers, etc.) of market-­preserving policies at the federal level. The wide range of decentralization was not primarily meant to enable self-­rule, but was intended to control state-­ interventionism on the subnational level through provincial competition. This competition was to be triggered by the mobility of capital. In the words of Milton Friedman, (1962, p. 3): “If I do not like what my state does, I can move to another”. Globalization and the Endogenous Responses to Economic Pressures in Federations

In addition to “home-­made” regional economic differences that result from unequal resources, a lack of investment opportunities or insufficient creation of human capital, there is the pressure for regions to react to globalization. One obvious reason is the fact that regional economies cannot escape the integration of national economies into the world market. National economies restructure, and regional governments or administrations are more than happy to help them in order to prevent social standards in the regions from deteriorating. Increased capital mobility in the process of globalization forces regions to compete for investments. There is also a need for the regions to be attractive for “softer” factors that influence investment decisions, such as the regional attractiveness of culture and schools for the families of a company’s decision-­makers. Investments as such do often come with a price tag for the regions. The result can be a destructive incentive bidding war that challenges sound economies of states. Whatever the reaction of states, globalization triggers a change of rules for regional economies to which they have to adapt. The debate on the demise of the nation-­state that was so vivid at the end of the last century seems to be decided. The nation-­state is here to stay, but so are the economic regions. No matter whether nation-­states are strengthened (protectionism) or weakened (supranationalism) in the process of globalization, regions lose their influence on national regulatory regimes. Sometimes, the result has been a loss of regional autonomy as Deeg and Lütz (2000, p. 397) have shown for financial federalism in Germany and the United States: “In both systems of financial federalism, power shifted toward those actors that, for different reasons, are most sensitive to the global economy and away from more regionally bounded interests.” In cases of ethnically defined sub-­national borders of a federation, for example, in Canada or Belgium, globalization may enforce identity politics and increase the threshold for centralizing policies. It has been argued that in the German case,

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globalization is furthering the division of the Länder into two classes: those that have sufficiently strong economies and resources to pursue autonomous policy actions, and those that do not. Resource-­poorLänderare therefore forced to rely increasingly on the federal government for resources and policy direction (Deeg, 1996, p. 29–30). It was a bit of a paradox that when globalization forced the Länder to invest, to restructure and to mobilize for their local industries, it was the richer Länder that could cope best. The observation that disadvantaged regions have much more substantial problems with globalization can be made all over Europe and is reflected in the “blue banana” geography of growth regions in the EU. Though the latter regions’ metropolitan axis, from London to Milan, curving through Brussels, the Ruhr and Zurich, has had some additions in the past, its core is remarkably stable. As Deeg (1996, p. 33) remarked: “Not all regions possess the critical mass of finance, skills, knowhow, entrepreneurship and information-­intensive activities of leading firms and sectors. In other words, there are only so many Silicon Valleys and Baden-­ Württembergs in the world.” Recently, the Länder–Mittelstand nexus was challenged by stronger competition from China for Mittelstand products and the financial crisis of some Länder institutions (e.g., the Landesbanken, Gubitz, 2013). But the Mittelstand remains the most important line of defense against challenges to regional economies. Williams (1997, p. 130) has argued that poor regions see a stronger regional economy as a solution for their economic problems. This overestimates regional protest, however, and underestimates the economic preconditions needed for internal growth. Regional economies can in fact become fairly small entities. Singapore is the prime example of a geographically small, but efficient player on the world stage. To make their country a Singapore on the Thames has been an aim for some in the British Conservative Party after Brexit. On a smaller dimension, there is a world-­wide movement of cities to become Global Players. They define their role in the tradition of neo-­functionalism and argue, for example, that the environment has no artificial border. To protect the environment, they say, it is necessary to build transnational networks and to follow the logic of federalism, that is, to combine self-­rule and optimal international regimes that give themselves a joint framework of decision making (Wesser, 2019). “It’s the Economy,” But What About Federalism?

Economic facts tend to overwhelm constitutional engineering. Federal systems are shaped by domestic and foreign direct investments. The latter follow mostly nonfederal rules. As Keating (1997, p. 28) argues, “systems for policy making are divorced from territorially defined institutions, systems for representation and democratic legitimation. These in turn may no longer

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correspond to forms of collective identity.” Subnational governments try, of course, to influence and steer regional economies. Their abilities are, however, limited. They may opt for total openness and engage in a bidding war for the best conditions to be offered to investors. Or they may decide to define regional champions, often in close collaboration with their universities, to foster a culture of small and medium sized enterprises. Regions cannot federalize the globalized economy. This is a dilemma. Regional voters expect regional governments to look after them, but often the instruments to do this are out of reach. The unrealistic hope of the 1980s of a demise of the nation-­state and the rise of regions is no longer a perspective for regional economic geography. Notwithstanding alternatives for companies, it is, however, not impossible that international firms keep their regional anchor, as is, for example, the case for the headquarters of Adidas in Herzogenaurach, Germany, or BASF in Ludwigshafen, Germany. Cooperative federalism has to live with economic asymmetries. They are, however, not as some rational choice oriented economic theories assumed the cause for migration from region to region or of a dwindling regional identity. Though this has limits, federalism can still count on the balance of selfrule and shared rule with the center when it comes to economic policies. Resource-­ rich regions can play an important role domestically and internationally. The same goes for regions that have an excellent record of innovation (Silicon Valley). Many regions depend on the ability of federalism to organize financial solidarity in addition to economic conditions. The political economy of cooperative federalism is therefore a reality of different and ever changing conditions that determine center–periphery relations. The Politics of Cooperative Federalism: The Case of Germany

From its very beginning, German federalism was devised as cooperative federalism based on federal-­state interest intermediation (Sturm, 2020). The German Constitution of 1949 allocates the lion’s share of legislative competences to the federal government (often as shared competences with the Länder). The Länder have most of the competences when it comes to the administration of law (including federal law). A joint competence of the federal and the Land level for the administration of law (“Mischverwaltung”) is a very rare exception. The Constitution allows it only with regard to services for the long-­term unemployed. Here, the local government (which is governed by the Länder) and the federal employment agency work together in institutions called Argen (Arbeitsgemeinschaften/joint working groups). Via the Bundesrat (a quasi-­second chamber of Parliament), the Länder have a role in passing federal law. When it comes to the election of the Federal President or the judges of the Federal Constitutional Court, the Länder and the federal institutions are on an equal footing. Germany’s membership in the

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EU was the source of further empowerment of the Länder in federal decision-­ making. The sharing of competencies in German federalism is paradigmatic for Germany’s democratic culture, which is based on consensus and compromise. This culture of federalism is reinforced by the experience of close cooperation in political life. It would be wrong to assume that the need to cooperate automatically creates harmony. It means more coordination, which strengthens the political executives on the federal and the Land level and weakens parliaments. Decisions are made by finding the smallest common denominator. This gives second best solutions a chance to succeed. Politics is slowed down, and fresh starts in politics are rare, but they are not impossible (Rüb, 2014). Most of the time the result of federal–Land bargaining processes is a give and take. The Länder get federal financial support; and the federal level gets greater access to Länder responsibilities. Over the years, the cooperation between the Länder and the federal level has become ever closer. One reason was the growth of policy fields for which the state took responsibility. The welfare state grew step by step and by the inclusion of new policies, for example, environmental policies. In most cases, this meant that the federal level took the lead. It could always argue that the Federal Constitution in its Article 20, Paragraph 1 defines the German Federal Republic as a federal state based on social principles, that is, as a welfare state. In the post-­war years, the cooperation of the federal level and the Länder concentrated on problems to solve, such as the future of agriculture or economic support for the territories bordering the iron curtain disadvantaged by the partition of Germany (Zonenrandgebiete). Cooperation followed the principles of efficiency and financial viability. In the next few decades, the federal level developed an appetite for a more systematic plan to bring Germany forward and together. This implied an improved steering capacity of the central government for more and more policy fields. The additional impetus of German unification 1989/90 and the connected process of institution building led to even more strategic centralization. It was also the rationale behind financial transfers and the transfer of administrative and political personnel from West to East under the auspices of the federal government. The German Constitution is built on the logic of the principle of subsidiarity. In its Article 30, it starts from the assumption that the Länder are responsible for public policies and public administration, with the exceptions enumerated in the Constitution. In practical politics, the Länder no longer dominated German statehood. Now, the federal government alone or in cooperation with the Länder sits in the driver’s seat. This is partly the case because the federal government has taken almost full control of the fields of concurrent legislation. Germany has a system of joint taxation, which excludes the Länder from separate sources of income of their own. And, when it comes to expenditure policies, the principle of subsidiarity is less important than all-­German solidarity and equality.

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The German Constitution in its Article 73 lists the federal competencies. It defines the tasks, for which only the federal institutions have a responsibility. Another category of law-­making is concurrent legislation. Concurrent legislation means that the Länder are responsible in matters falling in this category, but only if the federal level does not prefer to take over. Elements of concurrent legislation are the law (civil and penal), law-­making concerning civil associations (e.g., the federal home office may decide to ban right-­wing extremist associations), decisions on the rights of foreigners to enter the country or to stay, law at the workplace, food law, reproduction medicine and waste management (for example, systems for the recycling of waste). Over time, the federal level took responsibility for concurrent legislation. The justifications for this strategy were found in Article 72, Paragraph 2 of the Constitution. This article gives the federal level priority in the fields of concurrent legislation whenever national legal unity is needed to govern properly. Another justification is the need to protect an all-­German economic zone with no barriers. And, finally, the article offers the reasoning that the federal level may intervene and take responsibility for concurrent legislation to guarantee living conditions of equal value for everyone, whichever part of Germany he or she lives in. The same justifications applied to framework legislation until 2006, for example, in the field of higher education. In 2006, framework legislation was discontinued in the process of federalism reform. Framework legislation allowed the Federal Parliament to decide on the principles of law making in a certain policy field. Land Parliaments could then define their priorities in Land Laws which fitted into the federal framework. Framework legislation became untenable when the federal Parliament began to pass framework laws, which gave the Land Parliaments no longer a real choice. Framework legislation is a good example of the perils of cooperation in German Federalism. Political decision makers often argue that the logic of policy making in a certain policy field makes a very close cooperation between the Länder and the federal level unavoidable. The price is a loss of Länder autonomy. This is a constant source of political conflict. Federalism reforms have so far only marginally readjusted the Federal– Land balance of competencies and this provokes the question as to where German federalism is heading? We find both timid steps for the disentanglement of competencies, but also a strong consensus on more interlocking federalism and the centralization of competencies. The undermining of the Land autonomy in budgeting has convinced most of the Länder that they need federal support to solve their problems. This makes them inclined to accept a stronger role of the federal government and parliament in policy making. The result is not only a permanent transfer of decision making power to the federal level but also an overburdening of the central government in the long run. The Länder have a tendency not to use their remaining autonomy independently but to join forces with all the other Länder. They cooperate to

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come to agreements (the so-­ called third level of German federalism). Voluntary cooperation of the Länder adds to the uniformity in German federalism. References Anderson, Jeffrey J. (1996). Germany and the Structural Funds: Unification Leads to Bifurcation, in: Hooghe, Lisbet (ed): Cohesion Policy and European Integration: Building Multi-­ Level Governance, Oxford: Oxford University Press. pp. 163–194. Baun, Michael/Marek, Dan (eds). (2008). EU Cohesion Policy After Enlargement, Basingstoke: Palgrave/Macmillan. Beramendi, Pablo. (2007). Federalism, in: Boix, Charles/Stokes, Susan (eds): The Oxford Handbook of Comparative Politics, Oxford: Oxford University Press. pp. 752–781. Beuttler-­Bohn, Samuel. (2017). Die Identifikation der Bürgermitihren Metropolregionendurch Metropolitan Governance. Die Ballungsräume Stuttgart und Rhein-­ Neckar imVergleich. Münster: Lit Verlag. Deeg, Richard. (1996). Economic Globalization the Shifting Boundaries of German Federalism, in: Publius. The Journal of Federalism 26(1). 27–52. Deeg, Richard/Lütz, Susanne. (2000). Internationalization and Financial Federalism: The United States and Germany at the Crossroads?, in: Comparative Political Studies 33(3). 374–405. Drache, Daniel. (1999). Jobs and Investment Strategies in Canada: The Challenge for Policy-­Makers, in: Regional & Federal Studies 9(3). 38–80. Frey, Bruno S./Eichenberger, Reiner. (1999). The New Democratic Federalism for Europe–Functional, Overlapping and Competing Jurisdictions, Cheltenham: Edward Elgar. Friedman, Milton. (1962). Capitalism & Freedom, Chicago/London: University of Chicago Press. Gómez-­ReinoCachafeiro, Margarita. (2002). Ethnicity and Nationalism in Italian Politics:Inventing the Padania: Lega Nord and the Northern Question, Aldershot: Ashgate. Gordin, Jorge P. (2009). Regionalizing Patronage? Federal Resource Allocation and Party Politics in Spain, in: Regional and Federal Studies 19(3). 399–413. Gubitz, Benjamin. (2013). Das Ende des Landesbankensektors. Der Einfluss von Politik, Management und Sparkassen, Wiesbaden: Springer Gabler. Harmes, Adam. (2007). The Political Economy of Open Federalism, in: Canadian Journal of Political Science 40(2). 417–437. Harvie, Christopher. (1999). Travelling Scot:Essays on the history, politics and future of the Scots, Glendaruel: Argyll. Hechter, Michael. (1975). Internal Colonialism: The Celtic Fringe in British National Development, 1536–1966, Berkeley/Los Angeles: University of California Press. James, Patrick/Krieckhaus, Jonathan. (2008). Canadian Regional Development: The Quest for Convergence, in: Canadian Journal of Political Science 41(1). 187–202. Keating, Michael. (1997). The Political Economy of Regionalism, in: Keating, Michael/Loughlin, John (eds): The Political Economy of Regionalism, London/ Portland, OR: Frank Cass. 17–40.

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Keating, Michael. (2008). Thirty Years of Territorial Politics, in: West European Politics 31 (1-­2). 60–81. Keating, Michael/Loughlin, John (eds). (1997). The Political Economy of Regionalism, London/Portland, OR: Frank Cass. Lecours, André/Béland, Daniel. (2009). Federalism and Fiscal Policy: The Politics of Equalization in Canada, in: Publius: The Journal of Federalism 40(4). 569–596. Nairn, Tom. (1977). The Break-­Up of BritainCrisis and Neo-­Nationalism, London: NLB. Olberding, Julie Cencula. (2002). Does Regionalism Beget Regionalism? The Relationship between Norms and Regional Partnerships for Economic Development, in: Public Administration Review 62(4). 480–491. Parks, Judith/Elcock, Howard. (2000). Why Do Regions Demand Autonomy?, in: Regional & Federal Studies 10(3). 87–106. Piattoni, Simona. (2009). Multi-­ level Governance: AHistorical and Conceptual Analysis, in: European Integration 31(2). 163–180. Pratt, Larry/Stevenson, Garth (eds). (1981). Western Separatism: The myths, realities & dangers. Edmonton: Hurtig. Richards, John. (2007). A fine Canadian compromise, in: Paul Boothe/François Vaillancourt (eds): A Fine Canadian Compromise: Perspectives on the Report of the Expert Panel on Equalization and Territorial Funding Financing, Edmonton. IPE and CIRANO. 81–99. Rüb, Friedbert W. (ed). (2014). Rapide Politikwechsel in der Bundesrepublik, Baden-­ Baden: Nomos. Schmitt-­Egner, Peter. (2002). The Concept of ‘Region’: Theoretical and Methodological Notes on its Reconstruction, in: European Integration 24(3). 179–200. Stöckli, Andreas. (2019). Neujustierung des Schweizerischen Finanzausgleichs: Kompromis szwischen “ressourcenstarken” und “ressourcenschwachen” Kantonen gefunden!, in: Europäisches Zentrum für Föderalismus Forschung Tübingen (ed), Jahrbuch des Föderalismus, Baden-­Baden: Nomos. 285–298. Sturm, Roland. (2020). Föderalismus. 3rd edition. Baden-­Baden: Nomos. Tiebout, Charles M. (1965). A Pure Theory of Local Expenditures. Journal of Political Economy. 416–424. Vavakova, Blanka/Wolfe, David. (1999). Regional Innovation Policy: Rhône-­Alpes and Ontario, in: Regional and Federal Studies. 9(3). 107–129. Volden, Craig. (2002). The Politics of Competitive Federalism: A Race to the Bottom in Welfare Benefits?. American Journal of Political Science. 46(2). 352–363. Wesser, Elisabeth. (2019). Global Cities: Neue Global Player in der internationalenPolitik? Das Beispiel der Klimapolitik London. Baden-­Baden: Tectum. Williams, Colin H. (1997). Territory, Identity and Language, in: Keating, Michael/Loughlin, John (eds): The Political Economy of Regionalism, London/ Portland, OR: Frank Cass. 112–138.

10 FEDERALISM AND POWER-SHARING AS MODES OF DIVERSITY MANAGEMENT IN EUROPE Soeren Keil

Introduction

Switzerland, Belgium, and Bosnia and Herzegovina belong to the most diverse and divided societies in Europe. They are home to different language, religious and cultural groups, though the degree of internal division differs substantially. In Switzerland, four language groups (German, French, Italian and Romansh), two dominant religious communities (Catholic and Protestant Christians), as well as a diversity of cultural and socio-­economic groups share the same political space in a federal country that is divided into 26 cantons and ruled through complex power-­sharing mechanisms. In Belgium, the division at first seems to be much simpler – there are two dominant languages, cultural and religious groups; Flemish (spoken in the Northern region of Flanders) and French (spoken in the Southern Wallonia region) are the main languages, though German is also an official language. While Catholicism is the main religion across Belgium, religiosity is higher in Flanders, which also tends to vote for more right-­wing parties, while in Wallonia, the Socialist Party remains dominant. Moreover, Brussels is a divided city, with a majority of French-­speakers but equal rights for French-­and Flemish-­speakers. In addition to the division in three regions (Flanders, Wallonia and Brussels Capital Region), there are also three language and cultural communities (the Flemish, Walloon and German community), which also enjoy autonomy and decision-­making competences. Belgian politics, similar to that of Switzerland, is characterized by federalism and power-­sharing amongst different groups and territories. The same picture emerges when looking at Bosnia and Herzegovina1 – there are three constituent peoples (Bosniaks, Serbs and Croats), who share power in the central institutions, while the country is DOI: 10.4324/9781003461197-14

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divided into two entities; the Federation of Bosnia and Herzegovina (FBiH) is further divided into ten cantons (five with a Bosniak majority, three with a Croat majority and two mixed cantons), and the Republika Srpska (RS), which is inhabited mainly by Bosnian Serbs. The three countries under examination therefore have two important characteristics in common: first, they are divided amongst different language, religious, ethnic and socio-­economic communities, which seek recognition and claim the territory of the state as their homeland. Second, this diversity is accommodated through the combined use of federalism as a form of territorial autonomy and consociational power-­sharing, which requires elites representing different groups to work together in the institutions of the central state. Yet, despite these differences, the three countries also have important differences. First, while Bosnia is the largest of the three countries, it has the lowest population, with less than four million inhabitants. Second, while Belgium is a founding member state of the European Union (EU), and fully integrated in Western European and transatlantic political institutions, Switzerland is outside of the EU and NATO (though connected to the EU through multiple bilateral treaties) and pursues a neutral foreign policy. Bosnia, however, is a potential candidate for EU membership. Its willingness to join NATO has been confirmed recently by the government, though much skepticism remains because of political obstacles -in relation to Bosnian Serbs. The three countries also have very different economies, Switzerland being one of the richest countries in the world, while Belgium also counts itself amongst the 25 richest countries in the world. Bosnia, still suffering the effects of 3.5 years of war and destruction at the beginning of the 1990s, ranks as one of the economically weakest countries in Europe.2 Despite their similarities and differences, we see substantial divergence in the governance of the three countries. In particular, Switzerland is often hailed as one of the most functional and well-­organized plural democracies in the world (Fleiner, 2000). Belgium, however, has been criticized for its governmental inefficiency and the strict power-­sharing rules, which make policy-­making increasingly difficult (Popelier, 2019). Bosnia, like Belgium, has also faced a long period of government inefficiency and inability by ruling elites to initiate reform and manage the socio-­economic challenges, in particular towards EU integration (Keil, 2018). Why then do countries which share similar challenges and institutional provisions fare so differently when it comes to the performance of their political systems and the application of federalism and consociational power-­sharing as tools of diversity management within a plural democracy? This is the question at the heart of this paper. In order to answer the question, the first section of the chapter will engage with the concepts of federalism and consociational power-­sharing, their evolution in Europe and their application in the three case studies. The second part will look into the details relating to the application of

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federalism and consociationalism in Switzerland, Belgium and Bosnia to highlight similarities and differences in the institutional frameworks. Finally, the third section will look at the factors that might explain diversity in institutional performance on the one hand, and what this means more generally for federalism, consociationalism and diversity management in Europe on the other hand. Federalism and Consociational Power-Sharing in Europe

Federalism and consociational power-­sharing are complex terms when discussed in a European context. Traditionally, federalism is understood as a normative term and refers to the advocacy of multi-­tiered government combining elements of shared-­rule and regional self-­rule. It is based on the presumed value and validity of combining unity and diversity and of accommodating, preserving and promoting distinct identities within a larger political union (Watts, 2007, p. 7). This is often distinguished from a federation, which is referred to as a federal state, or as Watts (1998, p. 121) puts it: A federation is a compound polity combining constituent units and a general government, each possessing powers delegated to it by the people through a constitution, each empowered to deal directly with the citizens in the exercise of a significant portion of its legislative, administrative, and taxing powers, and each directly elected by its citizens. While these definitions are also relevant for our case studies in this paper, there is general recognition amongst scholars that the American tradition and the European experience of federal ideas are different, though not exclusive, nor without common strands of ideas (Burgess, 2006). In our case studies, federalism refers to a commitment to self-­rule (i.e., territorial autonomy for specific federal units) and shared-­ rule (i.e., the involvement of these units in decision-­making of the federation as a whole, often through second chambers and complex intergovernmental relations) (Elazar, 1987a). Its application in a federal state requires a set of normative values, such as a willingness to compromise, mutuality and a respect for constitutionality (Burgess, 2012), – in short, the existence of federal values and ideas is a vital condition for the functioning of any federation, that is, of any federal state (King, 1982). In our three case studies, federal structures are a response to historical diversity, religious, linguistic, ethnic, cultural and political differences requiring the accommodation of different forms of identities. Of course, the degree of diversity is different amongst the case studies, and

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their evolution over time is different – hence the use of different federal and consociational structures, but the application of federalism and power-­ sharing in all three cases is an attempt to bring together different groups who share the same political space. It is, in the words of Carl Friedrich (1968), the outcome of a federalization process, which, as Keil and Kropp (2022) have recently argued, is ongoing, even when these states decided to become fully fledged federal systems. Federalism like power-­sharing, thus, should neither be understood as a fixed constitutional mechanism that has been agreed upon at one point in time nor as a static framework, but instead as a dynamic process, which adapts and changes over time, as will be highlighted in the next section. In our case studies, adaptation has been vital to ensure federalism is still a suitable framework. Societies change and emerge, and political elites use, apply and change different political institutions and mechanisms in order to address these complex processes. Whilst path dependency matters, it should also not be overstated, as discussed below, when the decentralization process started in Belgium, for example, after the Second World War, political elites at the time could not foresee that 70 years later, it would lead to a situation where some actors question the whole make-­up and functioning of the Belgian state. Like federalism, consociationalism is a distinctly European phenomenon that has since been applied in other parts of the world (McGarry, 2019). Originally coined as a scientific term in 1969 by Arend Lijphart (1969), the term has since been used widely to describe political systems that require different consensual decision-­making procedures. It is often used synonymously with power-­sharing, though the two are not the same (McCulloch, 2016, Boogards, Helms & Lijphart, 2019) – hence this chapter’s explicit reference to consociational power-­sharing. In what can reasonably be considered one of his most influential books in the study of diversity accommodation in divided societies, Lijphart (1977) examined Democracy in Plural Societies – focusing specifically on The Netherlands (his home country), Belgium, Austria and Switzerland. These four historic consociational systems helped him further enhance his theory. Consociational democracy, according to Lijphart, is characterized by four key elements, namely, (1) Grand coalitions amongst the elites of the major segments in society; (2) Mutual veto rights, which are particularly important for smaller, minority communities in order to protect their interests; (3) Proportionality through proportional representation of groups in political institutions, public administration, the military and across other public offices; and finally (4) Segmental autonomy and federalism, which ensures that different groups within a divided society enjoy a high degree of self-­government within their own territorial unit (Ibid, p. 21–43). Consociational power-­sharing and federalism, therefore, are not alternatives – but they are intrinsically linked. Lijphart (1985) argued that federalism is one of the four dimensions of consociationalism, while

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Elazar (1987b) highlighted how consociationalism is a more flexible version of federalism – focusing similarly on self-­rule and shared rule but not exclusively centred around territorial autonomy. Two of Lijphart’s initial four cases of consociationalism are part of this study – Switzerland and Belgium, as both of them still fit the categories of consociational and federal democracies. Bosnia, however, only joined the ranks of a consociational federal democracy in 1995, when the Dayton Peace Agreement (Dayton Agreement) ended the three and a half year long war in the country. It is no coincidence that all three cases apply federalism and consociationalism. This can be explained through their historical evolution and through their societal diversity structures. However, as Duchacek (1985) pointed out, there is a consociational bargaining at the heart of every federal system – elite consensus is a key requirement for any agreement on territorial autonomy through a federal political system. Indeed, as will be highlighted below, consensus and cooperation are at the heart of these different arrangements in the three case studies, and their presence, or absence, and the role of elite socialization to these norms and values explain the functionality of these arrangements and their ability to adapt over time. When looking at the application of federalism and consociationalism in our three case studies, it is important to highlight that the discussions in the original four consociational democracies have substantially impacted on later consociational arrangements. As Allison McCulloch (2021, p.2) has argued “While consociationalism may have originated as a descriptive device to explain democratic stability in the Netherlands – and later Switzerland, Austria and Belgium – it has, beginning in the 1980s and especially since the 1990s, taken a distinctly prescriptive turn”. In other words, while debates in Switzerland and Belgium focused mainly on democratic stability in societies with different linguistic, cultural and religious groups, more recent cases (such as Bosnia) have seen both consociationalism and federalism applied as concrete institutional mechanisms to end violent conflict and ensure elite cooperation after longer periods of inter-­group violence. Herein lies a key difference in our three cases. While federalism and consociational power-­ sharing are devices to manage multicultural and multilingual democracies in Switzerland and Belgium, they have been used as tools to bring an end to the ongoing violence in Bosnia in 1995 and provide a framework that would ensure that the elites of the three major groups (Bosniaks, Serbs and Croats) would need to work together in the post-­war period (Schneckener, 2015). What we see then, if we want to examine federalism and consociational power-­sharing in the three European cases under examination, is a myriad of institutions, some historically grown, as in the case of Switzerland, over more than two centuries, some relatively new as in the case of Bosnia where they emerged after 1995 as part of an international peace agreement. We are seeing different practices of federal and consociational power-­sharing that aim to

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address the different needs of these three cases, their level of diversity, their historical evolution and their political socialization within the different arrangements. In order to understand, and appreciate these nuances, it is important to look at the evolution of these arrangements and their current operationalization in the next section. Evolution and Operation of Federalism and Consociationalism

The historic evolution of the three systems cannot be discussed in detail here; however, its contextualization is vitally important in order to understand the functioning and operation of these federal consociational power-­sharing systems. This is relevant for three reasons. First, each of these systems was adopted at specific moments in time, addressing specific historical circumstances. In the discussion on the emergence of federal systems and power-­ sharing arrangements, it is generally recognized that a specific set of conditions need to be met for these systems to evolve; however, the exact extent of these conditions remains debated amongst scholars (Burgess, 2006; McCulloch & McEvoy, 2020). Second, the fact that these conditions are always case-­specific raises important questions for comparative studies. In Switzerland, for example, 1848 was vital for the current federal and power-­sharing framework, but initial discussions on the issue went back all the way to the end of the 13th century. Likewise, power-­sharing in Belgium evolved over a period of time after the end of the Second World War, with different constitutional and state reforms leading to the installation of a federal power-­sharing agreement in 1993. In Bosnia, power-­sharing and federalism were formalized in 1995 as part of the Dayton Agreement; however, the system goes back to provisions of federalism and ethnic consociational power-­ sharing that were applied in Socialist Yugoslavia (Ramet, 1992). Finally, evolution needs to be understood as a flexible process. While there are specific dates when these countries agreed, their federal and consociational features, in practice emerged as a result of historical circumstances, such as the growing together of different cantons in Switzerland, the experience of Napoleonic rule in Switzerland and Belgium, the role of civil conflict over a period of time in all three countries, as well as complex state-­building processes since the 19th century, and in Bosnia even later. In short, evolution neither leads directly and through a linear process to the agreement on federalism and power-­sharing (for that would be reading history backwards) nor does evolution finish with an agreement on these arrangements. Belgium, for example, has gone through additional state and constitution reforms since 1993, Switzerland has passed two more constitutions since 1848, and while Bosnia’s constitution has remained relatively static since 1995, there have been a lot of debates on constitutional reform and adjustment – and several important policy reforms that have not been reflected in constitutional amendments.

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To assess the performance, functionality and operationalization of these systems, it is therefore important to take all of the factors above into account (Keil & McCulloch, 2021). Federalism and Power-Sharing in Practice

To discuss the federalism and consociational power-­sharing arrangements in the three countries, we will follow Arend Lijphart’s consociational framework. As he defines autonomy in addition to grand coalitions, mutual veto rights and proportionality as a key principle of consociationalism, it allows us to assess the consociational and federal features together. Grand Coalitions

In all three countries, we find provisions for grand coalitions in the executive branch. In Switzerland, the golden formula (or Zauberformel) has been revised a number of times in order to address shifting voter preferences, but remains in place, requiring representation from four different political parties, different cantons, religions, languages and more recently also gender in the government of the country. As O’Leary (2020, p. 569) highlights: The Swiss collective presidency, as the federal executive council as seen by comparative scholars, remains in being as a collegial body, and is not dominated by one party. The (informal) magic formula has been adjusted (not abolished), so far twice, in rough accordance with shifts in electoral support for parties. The other established parties have sought to domesticate the Swiss People’s Party, with some success. And the magic formula, however modified, still accomplishes (informally) proportionality among German and non-­German speakers, among Protestants and non-­ Protestants, among the parties in parliament (with a lag), and, now, among men and women. The same grand coalition principles can be found in Belgium, where the constitution even requires an even number of Wallon and Flemish speakers in government (Article 99 of the Constitution). As Kohler and Petersohn (2017, p. 108) point out “due to the high degree of party fragmentation in Belgium and the split of the party system along linguistic lines, government formation has become a lengthy and difficult process.” The requirements for grand coalitions are therefore based on linguistic criteria (French and Dutch/Flemish speakers) and territorial parties from Flanders and Wallonia. As the two parts of the country have very different party systems, an additional criterion emerges, namely, that of party ideology with the dominant parties in Wallonia

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at the political left of the spectrum and the Flemish main parties on the political centre-­right. The requirement for grand coalitions also extends to the city of Brussels, which is bilingual and applies its own power-­sharing system. In Bosnia, too, grand coalitions can be found across the executive branch. In the government, there is a requirement for territorial representation with 1/3 of ministers (at least) coming from the RS and a maximum of 2/3 of ministers coming from the FBiH. This requirement, together with complex entity and ethnic veto rights, means in practice that Bosniak, Serb and Croat parties always form coalitions in order to establish the government (Hulsey & Keil, 2021). In the Presidency, which also has important competences in foreign policy, a Bosniak, a Croat (both elected in the FBiH) and a Serb (elected in the RS) share collective powers and can take decisions only by unanimity (Bosnian Constitution Article V). Veto Rights

Veto Powers come in different shapes and forms. Originally designed to give minorities powers to influence those areas which are of particular concern to them (such as language, culture, and education), they have since been applied to different political regimes through a variety of institutional mechanisms and through direct and indirect veto rights (McEvoy, 2013). In the three case studies here, we find numerous forms of veto rights and possibilities. In Switzerland, there is an ongoing debate about the existence of veto rights in the political framework because no direct or indirect veto rights for the different language groups exist, though the cantons as territorial units enjoy veto powers through the second chamber and through the requirement of different majorities in referenda as well. Instead, consensus, cooperation and negotiations are key features of the policy-­making process in Switzerland, aiming to ensure maximum inclusion in decisions, while at the same time preventing the need for strong veto rights (Linder & Mueller, 2021). This has, as pointed out by Freiburghaus and Vatter (2019), been a particular challenge for the Swiss system, not least as the party system has become more polarized, and cooperative decision-­making has become harder. Federalism and consociational power-­sharing need to be seen as connected elements, designed to strengthen Swiss democracy and its focus on cooperation and consensual decision-­making. In Belgium, there are no direct veto rights, but a variety of indirect veto rights, most famously the alarm bell system in the Belgium parliament, which ensures that Members of Parliament are informed that decisions need not just a simple majority, but a majority within each of the two main language groups. On specific institutional questions, an additional overall 2/3 majority in parliament is required. The system is designed to give each of the language groups some protection in case they feel that laws will affect them negatively. However, as Popelier (2021) has

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demonstrated, as a result of the above-­described grand coalition provisions, most proposals have already been scrutinized by politicians from different groups, which explains why the alarm bell procedure has so far only been used a handful of times. Bosnia and Herzegovina is the exception to the three cases examined here, when it comes to veto rights. While Switzerland does know a formal process of veto provisions and only gives opportunities for the cantons (i.e., the territorial units) to influence decisions through the second chamber of the national parliament, in Belgium, veto rights exist – indirectly – through the alarm bell procedure (and special majority provisions) in the federal parliament for the two main language groups. In Bosnia, however, there are a variety of direct and indirect veto rights, which apply both to the ethnic groups (through the collective Presidency and the second chamber, in which five members of each of the three main groups are represented), as well as the territorial units through the so-­called entity-­veto, in which case each of the entity parliament can also confirm that a decision of the national parliament harms their vital interests (Bahtić-Kunrath, 2011). Bosnia therefore applies a much more formalized and strict system of veto powers. While the actual veto is used rarely in Bosnia (Bieber, 2006), the threat of a veto by any of the leading ethnic parties is consistently used in order to fend off unwanted legislation and counterbalance any proposals that are seen as a threat to the interests of their ethnic group. This has also meant that political parties, and their leaders, and not parliamentarians and elected politicians, are the main actors in Bosnia’s consociational power-­sharing system. These strict rules link to the different evolution of the systems – in Bosnia, federalism and power-­sharing were implemented after a violent conflict, so veto rights became a mechanism of ensuring that each group could protect their interests without having to revert to violence (Keil, 2020; Koneska, 2014). Proportionality

The principle of proportional representation is designed to ensure that different groups within a divided society are not only represented in the parliament (and government) but also in public administration, in the security forces and across the diplomatic corps. Internal diversity, in other words, should be visible, represented and protected, through a system which ensures that different groups enjoy the right of representation and participation in the state and its different institutions. The principle is ensured in all three countries, at times with strict quota and reserved seat provisions. Here too, there are some important differences between the three countries. While Switzerland does not provide specific reserved seats for the language groups in parliament or, formally, in government, electoral rules, the main influence of the (mainly mono-­lingual) cantons, and informal representation requirements for the governments ensure that

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groups are represented equally (Linder & Mueller, 2017). The same is true for the civil service, where language requirements and hiring practices ensure that a fair balance of the different language groups is achieved. Unlike Switzerland, where pre-­decision consensus, negotiation and compromise serve as a main vehicle to ensure inclusion and representation, Belgium uses a more formalized system. There are strict criteria on representation from the language groups in parliament – as all Members of Parliament have to declare their belonging to one language group (which also helps with the alarm bell procedure described above). Likewise, within the civil service, there are strict quotas and positions that are advertised for members of the different language communities. This was first introduced in order to deal with the underrepresentation of Flemish-­ speakers in the civil service and across the political–administrative structures, as French was the dominant elite language in Belgium well into the first part of the 20th century (Deschouwer, 2012). In Bosnia, too, a similar system of ethnic quotas can be found, which ensure not only that Bosniaks, Serbs and Croats are represented in the civil service, but at the entity level, there has also been an increased drive to include “Others” into the administration, though they still remain underrepresented, both in politics and across the whole administrative structures (Keil, 2021). Autonomy

As mentioned above, all three countries are federal systems, ensuring through the provision of territorial autonomy that specific groups enjoy a high degree of self-­governance. In fact, the three countries are decentralized federal states (compared, for example, with Germany and Austria). Moreover, federalism is a specific tool to address linguistic, cultural and ethnic diversity in the three countries, though the federal systems are different. In Bosnia and Belgium, we find two dyadic federations, which confirm Duchacek’s (1988) assumption that these federal systems are harder to govern. In Switzerland, 26 cantons share a relatively small territorial space (and a relatively small number of people – about 8 million inhabitants). This allows for shifting majorities across the cantons so that language (or religion) does not become the main cleavage, but instead, depending on different political issues, different coalitions and majorities emerge (Mueller, 2021). Swiss federalism, like its consociational system overall, is characterized by a high degree of compromise, consensus and negotiation. Due to the high level of decentralization, there are different political systems, and cultures in the 26 cantons, though some commonalities exist (Mueller, 2015). Likewise, decision-­making at the centre follows the rules of consensus and compromise, though these have been challenged by a more polarized party system, and by a divergence of interests amongst key political actors (Helms, Jenny & Willumsen, 2019). Swiss federalism requires a high degree of coordination and cooperation, as the cantons

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not only have a high degree of decision-­making autonomy, but they are also responsible for the implementation of federal laws across the country (Mueller & Vatter, 2020). Hence inter-­governmental cooperation between the cantons and between the cantons and the Swiss Confederation are of vital importance for making the whole system work. These further strengthen the need for cooperation and consensus – two fundamental values at the heart of Swiss politics and decision-­making. In this respect, Switzerland is similar to other integrated federal systems in Europe, such as Germany and Austria, but it differs from Belgium and Bosnia. Both countries follow the dual-­f ederal category, as typically found in the United States. Here, federal and regional authorities have their own administrations and independently implement their laws (Kohler & Petersohn, 2017; Keil & Woelk, 2017). Belgium has become substantially decentralized since the first state reforms after the Second World War, and the process has continued since the country turned federal in 1993. As pointed out by Lecours (2020, p. 55): “The federalization of Belgium occurred step by step – there were reforms in 1970, 1980, 1988 and 1993. The main reason for the incremental nature of the process was that Flemish and Francophone parties favoured different federal models”. In fact, this polarization is vital in order to understand Belgium politics today, as some argue that the increasing divisions between French and Flemish speakers, and the ever-­stricter consociational rules have made the country nearly ungovernable (Caluwaerts & Reuchamps, 2015). Belgium’s complicated system of regions on the one side (Flanders, Wallonia and Brussels Capital Region) and language communities on the other side (French, Flemish and German community), and their respective overlap and interaction (for example, in Brussels Capital Region and the fact that the German community is part of the Wallon region) demonstrates the complex nature of Belgium federalism (Popelier, 2016). From the three cases examined here, Belgium is also the only case that formally applies non-­t erritorial autonomy through specific arrangements for both major language groups in Brussels. While consensus and cooperation are also required in Belgium, polarization across the two main language groups has made coalition-­b uilding and decision-­m aking difficult. The integrated elements found in Switzerland (such as country-­w ide parties and cross-­c utting cleavages) do not exist in Belgium, and further decentralization, mixed with stricter consociational rules, has made the system as a whole less functional, even highlighting the disintegrative potential of decentralization and corporate power-­sharing. In Bosnia, there has been an increase in non-­territorial cultural autonomy as a result of an important Constitutional Court judgement in the Constituent Peoples’s case in 2000. Since then, provisions to support the

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non-­dominant ethnic group, as well as the “Others”, need to be provided in the entities and cantons. Moreover, the case has been hailed by some as a milestone in equality legislation (ICG, 2002), but its full implementation, as well as several other pieces of Court decisions from the Constitutional Court and the European Court of Human Rights, remain outstanding. Bosnia’s federal system, despite several reforms aimed at ensuring a stronger centre and a more functional state, remains one of the most decentralized states in the world, in which ethnic issues and political tensions between the parties representing the three main groups are the dominant feature (Keil, 2013). The state remains rather dysfunctional due to complex and inflexible consociational features, diverging elite preferences, and continued outside interference, which has so far prevented the system from reforming itself through internal consensus-­building (McCrudden & O’Leary, 2013). The entities, and in the FBiH, the cantons, remain the main arenas of decision-­ making and have substantial spending and taxing autonomy (Vanjek, 2020). As Keil and Anderson (2021, p. 170) explain: “[the] combination of ethnic and territorial power-­sharing has meant that politics in post-­war Bosnia requires consensus amongst Bosniak, Serbian, and Croat parties”. Yet, until today, this consent is missing, which explains the dysfunctional nature of the Bosnia state. While the RS and the cantons function reasonably well, they struggle with the lack of economies of scale, the limited power-­war recovery and the absence of large-­scale foreign investment as a result of a burdensome administrative framework and continued corruption at multiple levels (Hulsey, 2018). In Bosnia, therefore, federalism and consociational power-­sharing re-­enforce each other’s weaknesses. In highly decentralized systems, blocking decisions at the centre is easy because the territorial units are the main decision-­ making authorities. However, because territorial units are built around ethnic criteria, the system has disintegrative tendencies and without elite cooperation and the willingness to make compromises, major policies can be blocked and the state of Bosnia can be brought to a halt – a tactic both Bosnia Serb and Croat have increasingly used for their own political agendas in recent years. In Search of Functional Adaptability of Federalism and PowerSharing in Europe

Switzerland, Belgium and Bosnia have implemented federalism and power-­ sharing provisions in order to manage different degrees of diversity within their divided societies. While Switzerland is clearly the most functional and democratic country of the three case studies, its consociational and federal structures have grown over centuries and are characterized by the ability to adapt when required, to maintain a high degree of consensus amongst diverse actors, and to ensure that win–win situations are created regularly. Indeed,

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Switzerland’s economic success might well help in explaining some of the success of its rather complex institutional framework. In Belgium, there has been a process of adaptation and change since the Second World War. As the system became more decentralized and more consociational, questions about its functionality have been raised. Today, Belgium is seen as a rather problematic case in the application of federalism and power-­ sharing (Popelier, 2021), mainly because of heightened tensions between the language communities and the increasing incapability to find compromise and consensus on major governance issues. The most recent state reforms have made finding compromises even harder, and the country is seemingly on a path towards disintegration, despite major questions remaining in the case of state dissolution (for example, about the role of the city of Brussels). Similarly to Belgium, the spectre of disintegration and secession has been an important feature in Bosnian politics in recent years. The inability of Bosnian elites to find any compromises and pass any important pieces of legislation that would help to make the state more functional has increased secessionist tendencies amongst Serb and Croat elites, particularly. Here, the lack of a consensus on the state as a whole, which was created through an international peace agreement, is reflected in ongoing arguments and disagreement over institutional provisions and constitutional features. Bosnia is in a state of permanent crisis (Dzihic, 2012), and neither domestic elites nor the international actors that created the state are willing to implement the reforms needed to overcome this. What do these differences in the performance of the three federal and consociational systems tell us? First, making diverse societies work is hard. There are no quick fixes, no outside solutions and no one-­size-­fits-­all recipes. Even in Belgium, where we have seen an organic and incremental process of decentralization and the installation of power-­sharing, we can see that institutional features have limits. Second, political actors matter more than we think. Scholars of federalism and consociationalism have for too long neglected the importance of actors, both domestic and international, in the adoption and adaptation of these arrangements. The best institutional frameworks will not work, if the actors operating in them are not willing to compromise, work together to find consensus, and look for mutually beneficial solutions. The interplay between political structures, the main actors within it, and wider questions on political culture, and norms and values deserve further attention in the academic literature. Third, adaptation is the key. Keil and McCulloch (2021) concludes in their comparative study of power-­sharing in Europe that the systems that perform best are those that have been able to adapt, to change and to evolve. Federalism and consociationalism are therefore processes which evolve over time. They adapt to new circumstances and can provide a useful framework for accommodation, if elites are willing to use them. This is an important lesson for Europe and South Asia alike.

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Notes 1 The terms Bosnia and Herzegovina, BiH, and Bosnia are used interchangeably throughout this chapter and always refer to the whole country. 2 https://www.heritage.org/index/ranking The ranking focuses on economic freedom rather than purely on economic performance and includes GDP, average income as well as institutional factors such as rule of law, government size and regulatory efficiency into account. https://www.heritage.org/index/ranking [Last accessed 19. December 2021].

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PART IV

Cooperative Federalism in South Asia

11 EXECUTIVE ABSOLUTISM AND DECENTRALISED GOVERNANCE A Study of the Sri Lankan Provincial Council System Upul Abeyrathne and Sumudu Walakuluge

Background of the Study

Sri Lanka has been hailed as a new nation with immense development potential at the early stage of its evolution (Pieris, 2006; Jupp, 1978). However, over time, it has become an island of terror and fear due to her inability to resolve ethnic tension and anxiety created through the process of state and nation-­building for the territories left behind by the British Colonial Raj in 1948. The nation-­building process has imitated many features of nation-­state projects (Wickramasinghe, 2006). The majority of Sinhalese cultural symbols were given priority while arranging to give them a privileged position in accessing services provided by the welfare state of Sri Lanka (Spencer, 2015). Later on, there developed a discourse on the necessity of having a strong executive to protect the interest of the Sinhalese and the territorial integrity of the state (Welikala, 2008). The basic thrust of this chapter is that executive absolutism bars any attempt at resolution of the ethnic problems through decentralisation of power through a federacy arrangement like the provincial council system in Sri Lanka. Distinguished anthropologist Gananath Obeyesekere asserts that “the antagonism between Tamils and Sinhalese is rooted in the country’s history but has been exacerbated into inter-­ethnic violence only since 1956” (Obeyesekere, 1995).1 While the two authors of this chapter preserve the right to disagree with the point of view expressed above, they agree with the suggestion that antagonism among the Sinhalese and Tamils has recently been exacerbated to an unprecedented level. At the same time, S. J. Tambiah, an equally distinguished anthropologist of Tamil origin, wrote in 1986, that “Sinhalese-­Tamil tensions and conflicts in the form known to us today are of relatively recent DOI: 10.4324/9781003461197-16

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manufacture” (1993). Both scholars have agreed on the fact that it is gaining currency in the recent past, while the second points to the possibility of manufacturing such tensions and conflicts. What warrants in this context is an examination of the process of manufacturing violence and conflict under the international system dominated by the norm of statehood that could be claimed only by a nation. The implication of this international social and political norm remained largely unexplored to Sri Lankan ethnic conflict management efforts through the decentralisation of powers. Scholarly treatment of this case is further warranted because both the Sinhalese project of nation-­building and the Tamil project of winning a state for the Tamils have embraced features of nation-­building in response to each other’s claims (Abeyrathne, 2014). This chapter premises, in the context of political demography, that by the time of the departure of the British Raj from Ceylon, the competing political elite of the majority community found it expedient to base their electoral competition by emulating the path of the nation-­state as required by the international political system. It was essentially a homogenisation of polity, given the political demography of about 70% Sinhalese majority (ibid). Nation-state paradigm since the Westphalia Peace Accord held that the territorial boundaries of a state have to coincide with the culture of the people inhabiting it. The Westphalian consensus and the nation-­centred state project that derived from the French revolutionary politics implies only one nation is possible to inhabit a given territory. It is held that every state must contain within itself only one but not more than one culturally homogeneous nation, that every state should be a nation, and that every nation should be a state (Gellner, 1998). This cultural and political principle denies the possibility of having states with multiple nations which could live in peace and harmony and have civic political institutions that attract the loyalties of the different people while they remain different in other cultural spheres. However, the process of making homogeneous cultural nations for the state has not always been an innocent and nonviolent endeavour. Eugene Weber observed the fate of linguistic minorities in France in its attempt to make a homogeneous state (Weber, 1976). According to Tilly’s observation, war makes nations and states (Tilly, 1995). In the present context of third-­world politics, one can observe the international dictate of having a nation claim statehood in the international political system, causing blood bath and enormous suffering for thousands of people if political elites in multinational polities engage in the homogenisation project of nation-­building (Skocpol, 1995). Our normative perspective here presumes that there are possibilities of building a state nation wherein multiple nations co-­exist shoulder to shoulder sharing a common past, present, and future destiny. For such societies including Sri Lanka, adopting a state–nation format to meet the challenges in the present world order is suggested and recommended (Wriggins, 1960). Sri Lanka embraced the state-­nation building approach to resolve the ethnic problem in

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the country, through a peace deal brokered by India along with the Tamil political leadership, leading towards a federacy model. Yet, the Provincial Council System and the political leadership were unable to visualize an alternative future for different communities. One of the major assumptions of this chapter is the claim that the incompetent political leadership has made Sri Lanka suffer in her unfinished journey to comprehensive national integration and state-­nation building project. State - Nation Thesis

Our thesis of this chapter is informed by theoretical insights of state-­nation. A brief elaboration of what is meant by it is in order. The proponents of this thesis have pointed out that some of the modern states could not be regarded as nation-­states. In States like India and Switzerland, one would not find a nation like modern France. They are state nations characterised by a kind of loyalty towards the state institutions such as the central government, believing them to be guardians of both individual and collective rights, while allowing constituent groups of state community to enjoy a kind of cultural autonomy in their respective fields of influence (Linz, 2007). By contrast to the nation-­state, the state authority in the ­state-­nation does not demand a homogeneous society to carry out its authority. The loyalty towards the state is not residing in a singular homogeneous entity called the nation. The State - Nation Model holds that the authority of the state could be based on a kind of civic loyalty if it is capable of inculcating a sense of it as an impartial arbitrator of the conflict and provider of basic individual and collective cultural rights (Stepan, 2011). In such democratic societies, there are institutional safeguards that are constitutive of state-­nation policies. They may take the form of federalism, often specifically asymmetrical federalism, or consociationalism practices or federacy within a unitary state framework. It has been empirically revealed that every longstanding and relatively peaceful contemporary democracy shares this pattern virtually (ibid). There are countries in the world whose polity has more than one territorially concentrated, politically mobilised, linguistic-­cultural group. Those states do not belong to the classical form of federal states but “asymmetrically federal”. Belgium, Canada and India are but a few examples. State-­nation thesis holds that there shall be an affective attachment of the people to governing institutions as impartial arbitrators of conflict, but such an attachment is not sufficient. The construction of a state-­nation requires other elements of symbolic and emotional nature (Stepan, 2011). In the construction of a state-­nation to resolve ethnic problems of the multinational state, there are certain prescribed policies to be followed. They are as follows:

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1. An asymmetrical federal state but not a symmetrical federal state or a unitary state; 2. Individual rights and collective recognition; 3. A parliamentary system of government instead of a presidential or semi-­ presidential system; 4. Polity-­wide and “centric-­regional” parties and careers; 5. Politically integrated but not culturally assimilated population; 6. Cultural nationalists versus secessionist nationalists; and 7. A pattern of multiple but complementary identities. The Provincial Council system that was introduced in Sri Lanka has included many of the features identified by the federacy model, which enables the management of ethnic conflict. We adopt the definition given by Alfred Stepan, Juan J Linz and Yogendra Yadav for this study. They stated that: a federacy is a political-­administrative unit in an independent unitary state with exclusive power in certain areas, including some legislative power, constitutionally or quasi-­ constitutionally embedded, that cannot be changed unilaterally and whose inhabitants have full citizenship rights in the otherwise unitary state (Stepan A, J.J Linz & Y. Yadav, 2011). There have been many reasons to imitate the federacy-­like model in Sri Lanka. The ethnic group that challenges the unitary state structure has a territorially concentrated population that does not identify with the history and culture of the unitary state (Sri Lanka Constituent Assembly Official Report, Debates Vol.1, 1969). The following symptoms were common to the political, economic, and cultural bodies of Sri Lanka after the post-­ independent history. • The Tamil political leadership that emerged out of the community of Sri Lankan Tamils has not been included in the cabinet of ministers except on rare occasions and thus has contributed to a kind of physical separation or a great distance from the unitary state; • Tamils and Sinhalese have been linguistically and culturally different; • Tamils have got memories of previous self-­governing traditions; • A geopolitical or cultural sense that it was, and should be stated for the Tamil people; • A radically different economy that the population believes needs special laws to help preserve its livelihood and way of life; and • A history of warfare with, or coercive repression by, the unitary state within which it is located (De Silva, 2005; Wickramasinghe, 2006; Wriggins, 1960; Wilson, 1988).

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In the above context, many of the features of power-­sharing within the federacy model have been included in the provincial council system with little variation. These federal-­type arrangements are (1) explicit powers that fall in the exclusive domain of the federacy; (2) powers that remain in the domain of the centre; and (3) powers that might be shared or even remain with the centre but that can be progressively transferred permanently to the federacy (Constitution, 1978; 2021). Thirteenth Amendment, consequent to the Indo-­ Sri Lanka peace accord, paved the way for the establishment of provincial councils for the nine provinces recognised by the constitution while allowing Northern and Eastern Provinces to merge initially for one year. It stated that a referendum would be held in the Eastern Province, allowing the people of the province to decide whether to remain in one singular province or have one of their own (Article 154 (a) 1, 2 and 3 of the constitution. The Provincial Councils have been given permission of making statutes on the provincial list following the Indian model. It included 37 subjects that are related to development and law and order within a province (Appendix 09, List 1, (Provincial Council List) of the Constitution of Sri Lanka). Those powers are exclusive within the unitary framework (Article154 (a)(1) of the constitution). Though the centre retains the power to make any law, according to the new arrangement, it cannot make laws at its discretion over exclusively devolved subjects. If it is to make laws by following the simple procedure of law-­making, receiving the consent of all the provincial councils has been made mandatory. If at least one is dissenting over the proposed law by the centre, it needs to follow the special procedure which requires a two-­thirds majority in the parliament to make all the Provincial Councils binding on the law passed by the centre. These provisions can be understood as measures taken to ensure autonomy for provincial councils in certain areas. Further, following the Indian footprint of devolution arrangement, the concurrent powers have been introduced where both the centre and provincial council could make policies under 36 subjects. Article 154(5) of the constitution has empowered the parliament to make laws after consulting all of the provincial councils over subjects in the concurrent list, while the provincial council can make laws in consultation with the Parliament. However, it can be observed that the proposed Provincial Council system has been unable to deliver what is expected from it. In the above status, Article 154 of the Constitution states that the “Parliament may make laws concerning any matter set out in List III of the Ninth Schedule (“the Concurrent List”) after such consultation with all Provincial Councils as Parliament may consider appropriate in the circumstances of each case. It further notes that, Every Provincial Council may, subject to the provisions of the Constitution, make statutes applicable to the Province for which it is established,

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concerning any matter on the Concurrent List, after such consultation with Parliament as it may consider appropriate in the circumstances of each case (Constitution, 1978). The lacuna here is the absence of authority for the provinces to enjoy concurrent powers. In the Indian case, the Concurrent List (Schedule 7, List III) enumerates the areas of shared authority, and it provides the stage for cultural actors to perform at their interests that are not extended towards secession. As popular federacies prove, the enumeration of concurrent powers demonstrates a more integrated and sophisticated mode of federalism. In this study, we are intended to explore the causes of such failures of power-­sharing arrangements with a special reference to executive absolutism which shadowed and hindered the democratic sense of constitutional arrangements and amendments. In the process of examining the failure of the provincial council system to accommodate minority grievances in a polity dominated by the majority of 70 per cent Sinhalese, an attempt was made to showcase the process of strengthening executive absolutism and how it is linked to the provincial council system’s failure. In addition to the above, the Governor of a province is the agent of the President. The post of Governor was conceived of as the mechanism of ensuring the unitary character of the state, which has been an entrenched provision of the constitution. When the bill was debated in the Supreme Court, (on the constitutionality of the 13th Amendment), the majority decision of the bench was based on an unprecedented legal principle. The judiciary thought the presence of the President through his agent is the protection for the unitary character of the state. This raises the issue of whether the judiciary was also stuck into the idea of the absolute necessity of an Executive President. (Abeyrathne, and the Judgement). Federal Discourse in Sri Lanka

The decentralisation of power to resolve the ethnic problem of the country dates back to colonial days. To understand its evolution, an understanding of social formation during colonial days is required. One could argue that the present political demographic and social formation is a result of the colonial encounter of the people of Ceylon because colonial public policies have impacted identity formation (Wriggins, 1960; Kearney, 1967; Gunasekera, 2004). Like elsewhere in the colonised world, the British Colonial administration found the social and economic system of the newly acquired land to be strikingly different from that of their institutions (Tambe, 2008). By the time the British gained ascendancy in Ceylon (modern Sri Lanka) over the rest of the European powers, it had been under Portuguese and Dutch Rule. Yet, their presence was largely confined to coastal regions of the country and satisfied

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with the tapping of resources for their benefits (Sri Lanka Constituent Assembly Official Report, Debates Vol.1, 1969). However, the British have been attached very much to the idea of progress, the mantra of enlightenment and justification for colonialism (Arneil, 2020). The very idea of progress has gone hand-­in-­hand with the provision of information for policy formulation by the Colonial Raj. In the process of governing the colony, the British Colonial administration embarked on a project of collecting anthropological data on the different people in Sri Lanka according to their familiar conceptual tools. It was based on categorisation and counting the numbers of different groups that are included into a definite category of people, and none is not allowed to be beyond those categories (Kaviraj, 2003). It was assumed that everyone needed to be included in a definite category wherein mixed communities had not been recognised. The cumulative effect was the strengthening of the colonially constructed identities of the inhabitants of Sri Lanka. The strengthening of such identities was further reinforced by the communal representative principle adopted by the British Raj in Sri Lanka. The impact of British Colonial Ethnic policy came to be seen in the context of growing caste consciousness among those who speak Sinhala and Tamil by collectivisation efforts on the part of the Non-­Govi and Non-­Vellala caste elite early in the British Administration (Roberts, 1983). There is a considerable amount of literature on constructing history for caste groups among the present Sinhalese, which closely followed the footprint of the Chronicle of Mahavamsa tradition which was constructed to claim supremacy over other caste groups and collectivising caste groups to claim political representation and gain electoral hedging for their communities (Sumangala, 1876). When the Soulbury Commission visited Sri Lanka; it was the Kandyan Sinhalese who were most conscious of their ethnic identity. The British had categorised the Kandyan Sinhalese as a separate ethnic group considering their distinction from their Sinhalese brethren of the low country. The up-­ country areas, though, by then were largely multi-­cultural and multi-­ethnic, demanded a federal solution to the country’s ethnic problem for the first time. The proposal was never supported either by the low country Sinhalese or Tamils of Sri Lanka or by the Commissioners of both Donoughmore and Soulbury. At the hearing of the Donoughmore Commission, the representatives demanded federal arrangement and the second preservation of special seats (Sri Lanka Constituent Assembly Official Report, Debates, 1972). However, it was S.W.D.R. Bandaranayake who envisioned a Canton-­like federalism of Switzerland as the solution to the ethnic problem of Sri Lanka for the first time (De Silva, 1987). The crux of the argument of the up-­country Sinhalese proposal before the Donoughmore Commission was that it was a federal solution that could protect their culture and well-­being in the traditional areas of the Kandyan kingdom. It has been observed that the proposal has adopted a political language

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almost similar to the political language used by the Tamil political leadership in the context of emerging majoritarian politics of the country to demand a federal solution to their issues and problems (Edirisinha, 2005). However, it is to be noted that even at the doorstep of political independence, there was no political demand for a federal type of solution to the ethnic problem of the country. It was largely due to the political demography at the time. Approximately half of the total Tamil population of the country resided in Sinhalese majority districts. Shrewd calculation on the part of the then government to weaken the political left led to the formation of the Federal party and provided incentives for pan-­ Sinhalese government formation for it boosted the politics of chauvinism (Sivarajah, 2007). It can be argued that the citizenship act and franchise cumulatively provided momentum to ethnic chauvinism by reducing coalition formation possibilities across the ethnic divide (De Silva, 2004; De Votta, 2007). The Citizenship Act has deprived the citizenship right of the Indians Origin Tamil, while confining voting rights to citizens alone. However, in demarcating electorates, under the first-­past-­the-­ post system, the number of people inhabiting a particular area was taken into account, allowing the Sinhalese an edge over the electoral marketplace.The enactment of the Official Language Act of 1956 led to the deprivation of access to the services provided by the workfare state that developed since the introduction of universal franchise. The 1956 general election has been marked as the cornerstone of stopping polity-­wide electoral campaigns by major political parties (Kearney, 1967, p. 77). Tamil political leadership consumed more time in envisioning a federal type of political solution to the problems faced by the Tamils of Sri Lanka. It was in the context of increasing emulation of nation state building format that has given priority to the Sinhalese through the process of public policy making in the spheres of social well-­being and religions of the constituent elements of the Sri Lankan society (Gunasekera, 2004). However, the main political representative of the minority, i.e, the Federal party was not in the habit of going beyond the demand of federalism up to the 1970s. To substantiate the point, the election manifesto of the Federal Party can be cited as follows: It is our firm conviction that the division of the country in any form would be beneficial neither to the country nor to the Tamil-­speaking people. Hence, we appeal to the Tamil-­speaking people not to lend their support to any political movement that advocates the bifurcation of the country. The above exemplified the willingness of the political leadership of the minority community that has been dispersed due to historical reasons to remain within a singular polity. They thought it could meet the community’s aspirations and remain within a shared polity with a common destiny and future but differently from the rest of the communities in Sri Lanka.

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The homemade constitutional exercises carried out by the majority Sinhalese political leadership deprived them of that aspiration and hope. The United Front government which comprised the Communist Party and Lanka Samasamaja party carried forward the homogenisation politics associated with the nation-­state building project more aggressively. It was a continuity of a centralised colonial state and policies of curry favouring conservative political leadership to keep the political left at the bar by British colonial masters (Wickramasinghe, 2010). It indicates the depriving of any hope of living in a polity which is shared in the future by the rest of the communities in the country. The language policy of the state has deprived access to services provided by the workfare state, which was a result of universal suffrage. The deprivation was further aggravated by policy measures such as the university admission quota system and other cultural policies followed by the state. The cumulative effect of those had been the growing sense of systematic rejection of the utility of sharing a common Sri Lankan identity. The enactment of the 1972 constitution has taken away hope of preserving the culture and dignity of minority communities and leading Tamil political leadership to demand a separate state as the ultimate solution.2 The second republican constitution enacted in 1978 included provisions which entrenched the positions of Sinhalese, viz rest of the communities that were introduced under the First Republican Constitution while adding more and making them entrenched provisions of the constitution. The two republican constitutional provisions and political discourse that went hand-­in-­hand not only introduced the kind of executive absolutism but also the push factor for the Sinhalese community towards the idea of the necessity of the executive presidency to preserve the continued existence of the community. In this context, discussion of the contribution of the two-­republican constitutions towards executive absolutism is warranted. Two Republican Constitutions and Executive Absolutism

The two constitutions introduced in 1972 and 1978 have contributed to increasing ethnic tensions and anxiety in many ways while establishing a kind of authoritarianism through the democratic tool of elections (De Votta, 2007). The United Front Government that came into power in 1970 took the initiative to introduce a new Republican Constitution. Resolution no. 2 of the constituent assembly aimed at introducing the unitary framework for the government of the country. In the debate, V Dharmalingum, a federal party MP, stated that the desire of the Federal Party has been not to divide the country but to achieve unity in diversity (Sri Lanka Constituent Assembly Official Report, Debates Vol.1, 1972). The ethnonationalism of the ruling party, the opposition and even the political left was not ready to negotiate a political settlement to the problem through decentralisation of government power (Rampton, 2013). The Constitution has removed the protection

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provided for minorities via article 29 (2) of the previous Constitution. It also included a provision to give priority to Buddhism.3 The Official Language Act was constitutionally recognised. To supplement the removal of minority protection, the minister in charge of the subject had argued a new chapter on, one would realise the following: It has closely followed the notion of unitary citizenship, which is to be found in nation-­states like France and other states; it implies only individual but not group rights are recognised; it indicated that in the governing process of the country, majority could do away with minority concerns. In addition to the above, there were no proper legal remedies available for individuals in cases of fundamental right violation. The constitution also made provisions to do away with the independence of the judiciary and public service, ultimately resulting in subservient groups of officials for the political party in power (Wijeweera, 1992). It was largely due to the vesting of power of appointment promotions and disciplinary control in hands of the cabinet of ministers. In addition to the ceremonial figure of state, that is, the President was nominated and appointed by the Prime Minister. The constitution included an ironical provision for the removal of ceremonial state figures, which is unprecedented in other parliamentary democracies. If the resolution is moved by the Prime Minister, he/ she could be removed by a simple majority in the National State Assembly, while a 2/3 majority is required for removal from the office, if it was moved by any other members in the National State Assembly. It marked the laying of the foundation for executive absolutism in the country, which was later copied by the Second Republican Constitution of 1978. The Second Republican Constitution introduced a kind of semi-­presidential system for the government of Sri Lanka. It is a hybrid system drawn from the government systems of the United States , the United Kingdom and France. According to A.J. Wilson, it is tailor-­made for President J.R. Jayawardene (Wilson, 1980). It can be pointed out that if the First Republican Constitution introduced the executive absolutism of the Prime Minister who is still present in the National State Assembly to answer members of the assembly, the new constitution introduced the presidential absolutism who is not answerable to the Parliament (Perera, 1991). The new president is to be elected in a country-­ wide popular election and is required to secure more than fifty percent of the votes cast. The cabinet of ministers including the Prime Minister, commanders of the tri-­forces, and the judges of the superior courts was to be appointed by the President at his discretion. He could put any bill rejected by the parliament for approval at a referendum, making him a rival of the legislature if he has got popular support according to the original Constitution. In addition to the above, the Constitution further strengthened majoritarian supremacism by making those constitutional measures introduced under the First Republican Constitution. It has made unitary characters such as Buddhism and Buddhist Sasana, among others, entrenched provisions of the

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constitution. It implies amending those provisions by 2/3rd majority in the Parliament and approval at a referendum is required. It amounts to a constitutional guarantee of the majoritarian culture and political spoils for the majority. Some argued the Executive President elected in the nationwide election would be friendly to ethnic minorities in the country (විතානවසම්, ඒ, 2007). However, what are the implications of reading entrenched provisions of the Constitution and presidential absolutism together? It can be argued that executive absolutism and majoritarianism go together and are closely interlinked. This close interlinking of executive absolutism and majoritarianism and its impact on decentralised governance will be discussed later in this chapter. Necessity of Decentralised Governance and Government Responses

As has already been pointed out, the idea of decentralisation of powers and the necessity of devolution is nothing new to Sri Lanka. Various proposals for power-­sharing have been put forward since the 1930s. There have been agreements between Sinhalese and Tamil political leadership from time to time. But they were abandoned under the chauvinistic forces used by the pressure of two political parties, which depend heavily on Sinhalese voters alone (Gosh, 2003). However, the necessity of decentralisation of power had been a felt need in Sri Lanka. In the context of youth insurgency in 1971, the District Political Authority System was introduced extra-­constitutionally to enhance the efficiency and efficacy of central government service delivery (විජේවීර, 1988). However, it cannot be regarded as a form of devolution of power or power sharing arrangement. Later on, the District Development Council system was introduced with the twin objectives of resolving the ethnic problem and initiating a development process that would overcome the shortcomings associated with centralised planning (Wijeweera, 1989). However, measures were too late and too little when compared with the aspirations and demands of the Tamil Ethnic Minority at the time. The demands have been converted from power-­sharing at the central government, Federal arrangement to separate state. It was not rationally acceptable to the radical youth and militant movement (Report of the Public Representations Committee on Constitutional Reform, 2016). It was the Indian-­brokered peace settlement that resulted in a federacy arrangement through the introduction of the Provincial Council, while introducing other friendly measures towards building a state-­nation and federacy model of government in Sri Lanka. Provincial Council System

The ethnic policy of the Sri Lankan government and its inactivity to maintain law and order in the politically sponsored ethnic holocaust of 1983 has

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provided an added Tamil military movement, and thus it got internationalised (De Votta, 2007). Under international pressure, particularly from India, there were several rounds of talks between the government and Tamil Parties. However, it was in 1987, the India-­Sri Lanka Peace Accord resulted in establishing the Provincial Council System as a devolution of power arrangement to resolve the ethnic problem of the country. As a result of the Peace accord, the government of Sri Lanka introduced the 13th amendment to the constitution. 13th Amendment and Federacy Features

One of the key features of the federacy model and state-­nation is the facilitation of different constituent elements of the society to nurture an affective attachment to civic political institutions of the state. The entrenched provisions of the Second Republican Constitution and certain ethnic policies of the Sri Lankan state have prevented the development of affective attachment towards the political institutions of the country. It is to be noted unless creative thinking is on the part of the Supreme Court of Sri Lanka that even the provincial council system would not have been adopted.4 The constitutional amendment has introduced several other provisions to facilitate the effect on the political institutions of the central government. They include making Tamil one of the official languages of the country, easing access to the services provided by the workfare states and resolving the citizenship rights and franchise issues through the laws subsequently passed by the Parliament. As pointed out earlier in the discussion, federacy arrangement includes an explicit mechanism to give power to units within the unitary framework, which are given exclusively to them. Following the Indian scheme of devolving powers, there are three lists, one for the Provincial Council, central government and a concurrent list. Under the Provincial Council list, there were 37 subjects exclusively devoted to the provincial councils. The list that reserved powers for central government covered subjects of national interests and interprovincial nature. The third list, that is, concurrent list covered subjects both provincial councils and central government could deal with. However, in the context of the real-­world situation of the operational experience of the provincial council system, neither Sinhalese nor Tamils seem to be satisfied with the solution. This warranted an examination of factors that lead to dissatisfaction with the system. What follows is a discussion on it. Programmed to Fail

In this section, we draw from public policy literature the notion of programming to fail and implementation failure as the toolkit for the analysis of the link between executive absolutism and ethnic chauvinism of the

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Sinhalese in particular and its impact on the devolution of power scheme in Sri Lanka. Programming to fail implies a reluctant response to a demand made on the political system on the part of the government, with the ulterior motive of avoiding the problem. Implementation failure implies a situation wherein the intended outcome and impact are not met, even though best efforts were taken on the part of the implementing authorities. In the case of Sri Lanka, both parts could be observed. There were certain provisions in the 13th amendment that could be interpreted as programming to fail the scheme. One of the key areas of such programming could be seen in the subsequent legislation to operationalise the scheme by the national parliament. According to Article 154 g (2), any of the statutes passed by a provincial council need to be sent to the Governor of the province who is the agent of the President. Upon such receipt of the statute, the Governor could take the following actions: (a) giving consent and (b) returning them to the provincial council asking it to be reconsidered. If the provincial council passed it with revision or without revisions, he could take the following actions: He could either accept and approve or reserve to seek the opinion of the supreme court through the President for one month. The establishment of the provincial political executive seems to be following the tradition of the parliamentary system and conventions. Article 154(f) of the Constitution provided for the Provincial Board of Ministers to advise the governor on the discharge of executive responsibilities of the council. Accordingly, he is bound to act on advice except for matters that were required to discharge at his discretion. However, the next section of the article prohibits questioning his actions in any court of law (Constitution, 1978). According to the provision under article 154 G (1), Provincial Councils have been empowered to make legislation on devolved matters under the provincial council list. The same article has included a provision empowering the national parliament to enact laws over subjects devolved to the provincial councils. According to the provision, any proposed bill for that effect after publishing in the government gazette and before inserting into the minutes of the Parliament and before one month shall be communicated to respective Provincial Councils. It has provided that if those pieces of law gain legality, every provincial council shall give consent. Otherwise, such laws require the special approval of the parliament. It implies significant powers have been devolved with a strong foundation. Reading between the lines of the constitutional provisions reveals the existence of two ways to enact laws over the subjects devolved to the provincial councils. One is on its initiative, and the other is upon a request made by the provincial councils. With the enactment of laws initiated by the Parliament, such laws become laws only for provinces that made such a request. In the case of the concurrent list, both the national Parliament and Provincial Councils can enact laws. If the national parliament intends to enact laws over the

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subject in the concurrent list, it has been enacted, the views of all the provincial councils need to be obtained. On the other hand, the Provincial Council could enact laws on the subject after consulting the national parliament. If there is any incongruence between the acts of the parliament and the laws of the provincial councils, the law passed by the parliament to have remained valid to the extent provincial council laws contradict the laws of the parliament. The national parliament could make a hugely negative impact on the working of the Provincial Councils through its responsibility of determining the composition of the members of a council, determination of the procedure to be followed by the Provincial Councils, determination of the salaries and allowances to be paid to the members of the council and determination of the method of election for the councils. The chauvinist government which has the required majority could effectively manipulate its power and effectively debacle them. Since 2018, the elected body of the Provincial Council has been made dysfunctional through its power to make election laws concerning provincial councils (Abeyrathne, 2014). Our discussion of programming to fail would not be completed without paying attention to the powers of the president and his responsibilities towards the effective functioning of the provincial council system as expected by the Provincial Council System. As the supreme court in its divided majority determination pointed out the symbol of the unitary character of the state vested with the Governor as well as the effectiveness and efficiency of the system depends on the character and attitude of the Governor chosen by the President at the first instance. On the other hand, the president’s position viz a viz was further strengthened through the power of the appointment of the chief of the permanent executive by the president and the other high-­ranking officers of the provincial civil service. The ex-­Chief Minister of the North Central Province observed as follows: “Earlier presidents tended to appoint a governor who did not engage in party politics and was acceptable from any yardstick. However, later on, that tradition was drastically changed, and mediocre persons and political henchmen were appointed as governors. They lack independence and think of their perks and do not think of the well-­being of the people. They are timid rabbits”.5 This indicates the link between the governor and the provincial council and the impact of programming to failure. One another aspect of the presidential attitude towards working of the provincial council could be seen concerning the chief secretary of the council and the relationship she/he maintains with the elected provincial council. The former member of the Northern Provincial Council explained the situation as follows: The President that won the Presidential Election of 2010 on extreme Sinhalese Nationalist platform wanted to show the world that he is not ethnically minded and ready to listen to the voice of the Tamils amidst

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allegation of a war crime as a face-­saving strategy. What he did was select a chief secretary from among the Tamil Community and make her the chief obstacle to the effective functioning of the council. The Provincial Council was unable to do anything because disciplinary control over the personnel system was beyond the elected representative council. Another dimension of the provincial administration is the officers who are seconded to the high-­ranking post of the provincial administration from the all-­island public service. Personnel management of this top layer is beyond the control of the provincial council, and it provided a shield for them against any kind of mischievous behaviour difficult to man them according to the requirements of provincial policies.6 It can be observed this trio, that is, Governor, Chief Secretary and the seconded officials from all island services worked as part and parcel of the programmed-­to-­fail mechanism. It has been observed that if the provincial councils are allowed to exercise their authority, the new system will operate as a genuine system of decentralised governance. However, the President’s extensive power over the Councils may restrict the ability of the councils to operate independently of the national government. The other cheap and most popular myth against provincial councils, which was propagated by the pseudo-­radical political left, has been that decentralised governance is costly and has become a parasite over the public pocket. However, those critiques have been forgotten (Shastri, 1992). Employees of the Council and provincial public service were second to the council from the all-­island public service, and there is no point in increasing the recurrent budget of the councils. In the above context, there is a serious question about heavy dependence on the national government for revenue (Oberst, 1987; Gunawardena, 2017) and whether the provincial governments will be able to raise adequate revenue to carry out their activities. Another programme towards the failure of the Provincial Council system is the non-­provision for reciprocal representation between the centre and the councils. One of the key goals of the federacy arrangement aims at creating a high level of trust, voice and loyalty between the federacy and the centre, so there is joint citizenship between the federacy and the centre. Unfortunately, there were no such provisions made for that effect under the 13th Amendment to the constitution of Sri Lanka. Minority Sense of the Majority and Executive Absolutism

The discursive practice carried out in the context of colonial statistical exercises has constructed ethnic categories on a firm basis. There was a systematic discourse production of cultivating a strong bond of social cohesion among the ethnic groups cornering internal divisions such as caste (Roberts, 1983). The fear psychosis thus created has been based on a discourse of imminent

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danger of the Sinhalese, even though they are the majority of the country numbering 70% of the total population (ibid). The discourse highlights “it is only in Sri Lanka that Sinhalese are in existence” and the Tamils are living in many parts of the world, and it is Sri Lanka that has been chosen by the Tamils to create their state (De Votta, 2007). Tamils living in India are posing a serious existential threat to the Sinhalese (De Silva, 1987). The minority mindset of the majority was identified as the cause of fear among the Sinhalese. The politically enterprising elites that have got firm roots among the Sinhalese vote bank have pointed out the necessity of absolute executive power for the benefit of the people. This idea of a strong executive which was presented as absolutely required for the protection of the unitary character of the state-­initiated with the enactment of the First Republican Constitution. It was further entrenched through the enactment of the Second Republican Constitution (Perera, 1991). The only difference between the two republican constitutions has been the former was built in and around one person; i.e, the President who is not answerable to the legislature, while the latter was present in the National State Assembly taking an active part in the deliberations in the legislature. The absolute president is given legal immunity copying from the parliamentary tradition where the head of the state takes no active part in the government while giving the president the power to pardon the convicted at his discretion. The election of President Chandrika Kumarnathunga (1994) and President Maithreepala Sirisena (2015) has indicated the significance of the minority support for democratic reforms of the political system of the country. However, this very same democratic forces victory that is cutting across the ethnic divide of the country has provided the impetus for chauvinist forces to cultivate fear psychosis and the absolute necessity of an absolute president to protect the country and provide security for the citizens, that is, Sinhalese in the context of the imagined threat originating from minorities who have been portrayed as traitors and conspirators that took hands with the foreign forces eyeing to destroy the country and eliminate Sinhalese (Gunawardana, 1990; De Silva, 2004). This discursive practice and its power could be seen by careful analysis of the presidential election result of 2019. It indicates the fact that one who is capable of mobilising Sinhalese voters could win the election without the support of the minorities. This indicates the possibility of further ethnising political parties working among the Sinhalese and depriving them of any hope of having a shared political destiny for all. Conclusion

The discussion on the programming to failure and the emergence of the absolute necessity of the absolute executive to shield the majority ethnic community who is possessed of being a minority which was discursively constructed shows the President is becoming the major obstacle to the successful

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implementation of the devolution scheme of power. So, we normatively conclude that the present presidential system is not appropriate for any kind of power devolution scheme. Our normative position is informed by the fact of making the elected executive in a presidential or a semi-­presidential system an “indivisible good”. It is necessary to vest power in one person, from one nationality, for a fixed term. Contrary to the above, a parliamentary system helps create the possibility of a “sharable good.” Shared good implies the possibility of other parties, composed of other nationalities, helping constitute the ruling coalition. This shareability occurs in situations where no single party has the majority support in the national legislature; it requires support from “the outside” by a party or parties that can give it a majority. The empirical evidence under the proportional system of representation suggests, if it was not for the presidential system, it could have evolved into a true federacy side by side with the provincial council system and led to shared loyalty towards the political institutions of the country as a whole. It has been observed that the government can collapse unless it constantly bargains to retain the support of its coalition partners, and the parliamentary system has got coalition-­sustaining qualities. In this context, we conclude that the president has become the bottleneck of the provincial council system, contrary to the expectation of the supreme court judges that have given its decision that the president would be the symbol of the unitary character under a federacy model of power devolution. Notes 1 We disagree with the suggestion because we believe it was a later invention (see: Gunawardana, 1990). 2 Soon after the adoption of the 1972 Constitution, the Federal Party, the ACTC and the Ceylon Workers Congress came together to establish the Tamil United Front, which later was renamed the Tamil United Liberation Front (TULF). The Vaddukodai Resolution was adopted by the TULF at its first convention held in May 1976. The resolution was based on four key ideas: (1) the recognition of the Tamils as a nation and their historical possession of the northern and eastern provinces; (2) the creation of a free, sovereign, secular, socialist state of Tamil Eelam based on the right to self-­determination inherent in every nation; (3) the will of the Tamil nation to exist as a separate self-­governing entity; and (4) a call to the Tamil nation and its youth to join the struggle for a sovereign state. 3 One long-­time member of the Lanka Samasamaja Party had revealed to the first author of this chapter, in fact the constituent assembly had nothing to deliberate as it was ready with one of the leading Ministers of the then cabinet and was a relative of the Prime Minister and a Christian by Faith. It was he who insisted on introducing a chapter on Buddhism to the constitution though members of the left were unwilling. Under the pressure of Prime Minister, they agreed to the suggestion. 4 It was challenged in the Supreme Court of Sri Lanka that the proposed 13th Amendment would do away the unitary character of the state, which was made an entrenched provision under the Second Republican constitution. The bench which comprised seven judges, three were of the view, that the proposed bill would violate the unitary character of the state. They were of the opinion that to pass it as

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an amendment to the constitution, it requires 2/3 majority in the parliament and approval at a popular referendum. The mood and opposition to Indian brokered peace accord would have easily prompted Sinhalese voters to oppose it. However, the majority of the Bench decided it would not amount to violation of the unitary character of the state, for there is to be a governor who is a representative and agent of the president. However, it is to be noted the decision was not taken in accordance with the principle of legislative power of the parliament, but on the novel principle of powers of the president. Though the decision was progressive, it remains one of the bottlenecks of efficient and effective functioning of the system coupled with the Sinhalese Majoritarianism (Abeyrathne 2019). 5 A communication with one of the ex-­Chief Minister of the North Central Provincial Council by the First author of this chapter. 6 Communication with a minister of the Southern Provincial Council and Presently a member of the parliament.

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Kearney, R. N. (1967). Communalism and Language in the Politics of Ceylon. Durham: Duke University Press. Lanka, T. C. (1969). Sri Lanka Constituent Assembly Official Report, Debates. Vol. 1. Colombo: Ceylon Government Press. Linz, L. J. (2007). ‘Nation State’ or ‘State Nation’? India in Comparative Perspective. In K. S. Bajpai, Democracy and Diversity: India and American Experience. 50– 106. Oxford: Oxford University Press. Oberst, R. C. (1987). Federalism and Ethnic Conflict in Sri Lanka. The State of American Federalism. 18(3). 175–193. Obeyesekere, G. (1995). Buddhism, Nationhood and Cultural Identity: A Question on Fundamentals. In M. E. Marty, Fundamentals Comprehended. 231–256. Chicago: Chicago University Press. Perera, N. (1991). Critical Analysis of the New Constitution of the Sri Lanka Government Promulgated on 31-­8-­1978. Colombo: Dr N.M. Perera Memorial Trust. Pieris, G. (2006). Sri Lanka: Challenges of the New Millenium. Colombo: Kandy Books. Rampton, D. (2013). ‘Deeper hegemony’: the politics of Sinhala nationalist authenticity and the failures of power-­sharing in Sri Lanka. In Nationalism and Conflict Management. 99–127. Routledge. Reform, P. R. (2016). Report of the Public Representations Committee on Constitutional Reform. Colombo: Public Representations Committee on Constitutional Reform. Roberts, M. (1983). The History of Caste in South Asia - Caste Conflict and Elite Formation: The Rise of a Karāva Elite in Sri Lanka, 1500–1931. Modern Asian Studies. 17(3). 519–528. Shastri, A. (1992). Sri Lanka’s provincial council system: A solution to the ethnic problem? Asian Survey. 32(8). 723–743. Sivarajah, A. (2007). The Federal Party of Sri Lanka: The Strategy of an Ethnic Minority Party in Government and Opposition 1949-­2002. Colombo: Kumaran Book House. Skocpol, T. (1995). Bringing the State Back In Strategies of Analysis in Current Research. In D. R. P. Evans, Bringing the State Back In. 3–38. Cambridge: Cambridge University Press. Spencer, J. (2015). Sri Lanka: History and the Roots of Conflict. New York: Taylor and Francis Group. Sumangala, W. (1876). Ithihasaya, Colombo: S. Godage & Sons. (Digitalized 4th May, 2019). Stepan A., J. J. Linz, Y. Yadav. (2011). Crafting State-­Nations: India and Other Multinational Democracies. Baltimore: Johns Hopkins University Press. Stepan, A. J. (2011). Crafting State-­Nations: India and other multinational democracies. Baltimore, MD: Johns Hopkins University Press. Tambe, A. A. (2008). The Limits of British Colonial Control in South Asia: Spaces of Disorder in the Indian Ocean Region. New York: Routledge. Tambiah, S. J. (1993). Buddhism, Politics and Violence in Sri Lanka. In M. E. Maty, Fundamentalism and the State: Remaking Politics, Economies, and Militance. 589–619. Chicago: Chicago University Press. Tilly, C. (1995). War Making and State Making as Organized Crime. In D. R. P. Evans, Bringing the State Back In. 169–191.Cambridge: Cambridge University Press.

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Weber, E. (1976). Peasants into Frenchmen. Stanford: Stanford University Press. Welikala, A. (2008). State of Permanent Crisis: Constitutional Government, Fundamental Rights and States of Emergency in Sri Lanka. Colombo: Centre for Policy Alternatives. Wickramasinghe, N. (2006). Sri Lanka in the Modern Age: A History of Contested Identities. Honolulu: University of Hawaii Press. Wickramasinghe, N.K. (2010). Sri Lanka’s Independence: Shadows over a Colonial Graft. In: Brass P.R. (Ed.) Routledge Handbook of South Asian Politics. India, Pakistan, Bangladesh, Sri Lanka, and Nepal. pp. 41-­51. Abingdon UK: Routledge. Wijeweera, B. S. (1989). Policy developments and administrative changes in Sri Lanka: 1948–1987. Public Administration & Development (1986-­1998). 9(3). 287. Wilson, A. (1980). The Gaullist System in Asia: The Constitution of Sri Lanka (1978). London: MacMillan Books. Wilson, A. (1988). The Break-­up of Sri Lanka: The Sinhalese-­Tamil Conflict. The Journal of Asian Studies. xvi. 240. Wriggins, H. (1960). Ceylon: Dilemmas of a New Nation. Princeton: Princeton University Press.

Sources in Local Languages විතානවසම්, ඒ. (2007). ශ්‍රීලංකාවේආණ්ඩුක්‍රමයසහදේශපාලනය. නුගේග�ොඩ: සයිබර්ගේට්සර්විස් විජේවීර, ර�ෝ�. (1988). දෙමළඊළාම්අරගලයටවිසඳුමකුමක්ද? ක�ොළඹ: නියමුවා‍ ප්‍රකාශන.

12 COOPERATIVE FEDERALISM IN NEPAL Practice and prospects Thaneshwar Bhusal

Nepal is one the youngest federal countries in the world. The Constitution of Nepal (2015) devises three levels of government: federal, provinces, and local governments, with a hope that each level of the government shall operate in accordance with the principle of cooperative federalism. Cooperation among different levels of government is generally sought in policymaking, implementation, and delivery of public services. While each level of the government is empowered with its own constitutionally mandated responsibilities, scopes, and objectives to make and implement policies, Annex-­9 of the constitution specifically outlines common functions to be implemented by federal, provincial, and the local governments. These functions are related to making public policies, implementing them, and delivering diverse public services to citizens. With just above seven years of the implementation of Nepal’s federalist constitution, it is too early to reach any conclusion about whether the notion of cooperation is (or not) functioning. However, these seven years have shown a few indications on the efficacy of institutions and processes that commonly aim to achieve the objectives set out in the aforesaid Annexes (Bhusal & Breen, 2021). This chapter examines these indications through an analytical framework that captures political, administrative, and fiscal dimensions of cooperative federalism, which has been widely used in the studies of intergovernmental relations in federal countries (Gagnon & Tremblay, 2019; Loughlin, Kincaid & Swenden, 2013). The chapter is broadly presented in five main sections. After this introduction, a brief perspective on the theoretical framework to study cooperative federalism is presented. The purpose of bringing the relevant literature to this

DOI: 10.4324/9781003461197-17

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chapter is to understand pre-­existing studies on institutional and intergovernmental approaches to Nepal’s cooperative federalism. The third section interprets Nepal’s cooperative federalism in line with the analytical framework, with specific focus on two aspects of analysis: institutional approach and intergovernmental approach. The fourth section is the discussion of Nepal’s cooperative federalism. It brings discussion on policymaking, implementation, and service delivery dimensions of Nepal’s federalism, which is framed in terms of their political, administrative, and fiscal dimensions of federalism. Building upon the knowledge produced in this chapter, the conclusion section presents some of the important empirical implications of Nepal’s policymaking, implementation and service delivery arrangements to the studies and practices of cooperative federalism. Studying Cooperative Federalism: An Analytical Perspective

Much of the normative literature on federalism in the contexts of emerging federal countries focus on how institutions are structured and the extent to which such institutions interact with each other. While matured federalisms offer much refined ideas on what works better in terms of institutional design, the interactivity of institutions differs significantly across contexts. Nevertheless, a commonality of institutional design across diverse contexts of federalism is available (Hueglin & Fenna, 2015), though their basis varies significantly. Three key bases of such differences are found in the literature: cooperative federalism, competitive federalism, and a mixture of cooperation and competition (Breen, 2018). Studying cooperative federalism requires us to understand institutions and their relationship with each other. Often characterised as an institutional approach, both normative and empirical studies on cooperative federalism have been based on how the constitution of certain countries devises institutions (Gagnon & Tremblay, 2019). Some scholars assert to have multilevel perspectives in the studies (Fawcett & Marsh, 2017), while others focus on ‘power’ and ‘function’ given to the institutions (Paleker, 2006). The multilevel perspective on federalism is worth bringing as an analytical element because it helps us to understand the notion of their horizontal and vertical interconnectivity. The power-­centric literature is also useful because institutions placed at different levels in federalism define themselves according to their (constitutional) power and functions. The other dimension of studying cooperative federalism needs to bring intergovernmental relations into the analysis. In contrast to the institutional approach, the intergovernmental relations approach is crucial to define how institutions cooperate with each other. Centralised federalisms such as in India or more decentralised versions of federalism as we can see in Australia demonstrate the importance of intergovernmental relations. The insights from these

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countries suggest that intergovernmental relationships are defined in accordance with the need to cooperate with each level of government (Loughlin, Kincaid, & Swenden, 2013; Fletcher & Walsh, 1992). Relationships are dynamic. When the entire federalism is designed with a ‘centralist’ mindset, such relationships appear to face downward, making the subnational governments dependent on the national government, albeit their constitutionally guaranteed power and resources (Bhattacharya, 2020). In circumstances where focus is on subnational entities, relationships face upward, with adequate participatory opportunities to ordinary citizens at the local level, as well as local governments’ participation in the national policymaking (Palermo, 2015). This chapter is benefitted from these two key analytical dimensions: institutional approach and intergovernmental relations approach. Although these dimensions may have several caveats to consider before adopting in any analysis, it is a hope that Nepal’s cooperative federalism can be better interpreted with a framework consisting of these two analytical dimensions. The following section will bring Nepal’s case of cooperative federalism and present it in these two frames. Interpreting Nepal’s Cooperative Federalism Institutional Approach

Much of the academic work on Nepal’s federalism is still in its infancy. The grey literature seems to have dominated the studies of federalism in Nepal, although a few number of academics in the field of political science and policy studies have begun to scrutinise federal, provincial and local collaborative institutions and processes devised in the constitution (Acharya & Zafarullah, 2020; Breen, 2018; Bhusal & Breen, 2021). These studies show that both vertical mechanisms and horizontal means of cooperation are ubiquitous in the constitution, yet their efficacy is not clearly understood (Bhusal, 2022). Critics argue that vertical instruments of cooperation face downward, making the upper-­ level mechanisms more authoritative or instructive, whereas the horizontal means of cooperation are not sufficiently empowered to bridge federal entities (Bhusal, 2019b). Nevertheless, existing studies are not exclusively hopeless on the prevailing constitutional provisions of the institutional layout of cooperative federalism in Nepal (Acharya & Chandrika, 2021). Two groups of scholarship are emerging in the context of institutionalising federalism in Nepal. The first group of scholars appears to be somewhat optimistic with institutions and processes that operate at federal, provincial, and local governments (Bhusal & Breen, 2021; Breen, 2018). Based on the analysis of legislative documents, it seems that Nepal’s federalism is perfectly capturing the notion of cooperative federalism – making each level of government

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cooperative – rather than competitive – to each other. Institutions at federal and provincial level are also reported to have facilitated coordinated relationships between federal and provincial government entities (Bhusal, 2022). Working procedures such as annual budget and policymaking timelines also enable smooth implementation of cooperative federalism in the country (National Planning Commission, 2021, 2018). The second group of research is relatively pessimistic with the modus operandi of institutions and processes that aim to foster cooperative federalism in Nepal (Acharya, 2013, 2007; Ginsburg & Huq, 2020, p. 21–22). From the perspective of politics, the federal government is designed to steer the entire institutions and processes of federalist structure in Nepal. The institutional design appears a top-­down skeleton of federalist governance (Bhusal, 2019b). Provincial and local governments are designed in a way that they must wait for what the federal government says in making any political decision in their constitutional jurisdictions. The administrative perspective also reveals almost ­similar stories. Provincial and local governments must obey administrative principles such as human resources management and service delivery (Government of Nepal, 2019). The fiscal perspective also does not feature much hope in materialising the notion of cooperative federalism in Nepal. Although the constitution is clear about fiscal distribution principles, practices of fiscal transfer criteria face criticisms as these aim to strengthen federal government institutions (National Natural Resources and Fiscal Commission, 2019). A tiny yet cautious subgroup is also on the horizon, which claims to be neither critical nor optimistic about the existing setup of cooperative federalism in Nepal (Chamlagai, 2021; Bhattacharya, 2020). Because Nepal’s federalism roots back to its centuries-­long unitary system of government, it would be unrealistic to think of devising institutions and processes in déjà vu. A range of institutions and processes at federal and local level appear to be either renamed or left unchanged, though exceptions prevail at the provincial government level. The National Planning Commission, for example, was established in 1968 to work as the central government’s think-­tank institution, which remains the same institution with almost similar roles and responsibilities (National Planning Commission, 2021). The local level planning process is another example of the continuity of similar participatory decision-­making processes of local governments (Bhusal, 2020). Regardless of the continuity of classical institutions and processes in the new federalist government in Nepal, the notion of how centralised (now federalised) agencies cooperate with subnational entities (now governments) is the central concern of this chapter. The preliminary impression is that these (and several other similar organisations) feature a top-­down approach to cooperation among federal units, with the federal government’s role more prominent in making political, administrative, and fiscal decisions.

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Intergovernmental Relations Approach

In principle, cooperative federalism offers better intergovernmental relations than other forms of federalism such as competitive federalism. Institutions and processes in cooperative federalism are found to be designed in a way that each level of government complements each other’s policies and programmes. In the case of Nepal, cooperation has been sought principally within executive branches and parliamentary relations, with the view that policymaking (by legislatures) and implementation (in federal, provincial, and local level) happen in a harmonious environment. The judicial perspective of cooperative federalism can also be visualised, but the Constitution envisions the courts to be centrally controlled by the Supreme Court and the Judicial Council. Three key aspects of cooperative federalism characterise the breadth and depth of intergovernmental relations in Nepal. First, the institutions and processes of local and provincial governments have been designed in a way that they must work with the federal government to formulate and implement several functions as outlined in the relevant Annex of the constitution (Government of Nepal, 2020). This notion of institutional coherence is important because the constitution clearly states that provincial and local governments are autonomous entities in the federation. While some municipalities and provincial governments keep on expressing their dissatisfaction over remaining dependent on the federal government to make or implement certain policies, their dissatisfaction has not yet resulted in notable intergovernmental conflict. Second, the provision of intergovernmental fiscal transfer is the glue to hold all three levels of government in a way that each level of government complements each other’s functions (National Natural Resources and Fiscal Commission, 2019). The revenue-­sharing feature of the fiscal transfer system in Nepal is the testimony of how different levels of governments work together to share financial resources with the sole purpose of strengthening each level of government. Cooperation is sought in expanding the scope for taxation, developing strategies to minimise overlaps in taxing instruments, and exploring collective methods to utilise the available resources. Although the federal government seems to have the upper hand in making decisions about fiscal policies of provincial and local governments, the aim of such a top-­down approach to resource distribution is to strengthen the notion of cooperative federalism in Nepal. The third aspect of cooperation can be traced into the public personnel system in Nepal. The legislative provision to deploy centrally recruited human resources to provincial and local governments stipulates that the federal government must deploy career bureaucrats of its own to the governments at the subnational level (Government of Nepal, 2019).

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The exclusive purpose of such policy is to ensure that the newly created provincial and local governments acquire necessary administrative skills, system, and expertise into their day-­to-­day administrative and service delivery activities. This knowledge transfer scheme – through public personnel management – of the federal government is notable to exercise cooperative federalism. There are two mainstream routes to intergovernmental relations ubiquitous in the existing studies of federalism in Nepal (Acharya & Chandrika, 2021; Bhusal & Breen, 2021). The first is the executive routes through which the executive branches of federal, provincial, and local government jointly implement public policies. The like-­ minded line ministries and departments of federal government establish networks with provincial and local governments to develop common implementation modalities – sometimes with cost and human resources – with the objective to achieve outcomes linked to the Annex 9 (the common functions of all three levels of governments) of the constitution. The federal government has established dedicated entities like the National Planning Commission (NPC), which facilitate bridging such executive pathways (National Planning Commission, 2018). This indicates the influential role of the federal government in creating executive-­ level relations between all three levels of government. However, this is not the case. In fact, the Office of the Prime Minister and Council of Ministers (OPMCM) has been set up as a liaison entity of the federal government to link federal government and provincial governments, and the Ministry of Federal Affairs and General Administration (MoFAGA) has been established as the focal ministry to activate the communication flow between federal government and local governments. The provision of Provincial Planning Commission (PPC) also assures to have cooperation in the making of short-­term macroeconomic frameworks and long-­term development planning across jurisdictions. The second is the parliamentary routes, which also seek to establish cooperation between federal parliament, provincial legislatures, and the local assemblies. Although each legislative body has its own structure, mandate, and working procedures, the constitutional mandate to implement cooperative federalism largely relies upon the decisions taken through these important state wings. In terms of scope, local assemblies enjoy much political and economic space, though their geographic coverage is limited. Provincial legislatures have bigger geographic coverage, yet their influence in the making of political and economic decisions seems relatively weaker than local and federal legislative bodies. Federal parliament, on the other hand, enjoys much wider space in the political, economic, and social arena. Regardless of differences in structure, mandate, and scope, the parliamentary routes of intergovernmental relations aim to achieve a constitutional thirst to make sure that laws are made consistent across jurisdictions.

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The Multidimensionality of Nepal’s Federalism

Policymaking, implementation and service delivery are key dimensions in which Nepal’s cooperative federalism hinges on. For analytical purposes in this chapter, these dimensions are aligned with Nepal’s political, administrative, and fiscal federalism (Table 12.1). The following sections shall describe each dimension of political, administrative, and fiscal federalism in Nepal, with their clear implications to policymaking, policy implementation, and service delivery. While the analysis in this section echoes the components of the analytical framework presented above, the interpretation provides insights into how each dimension of federalism is interconnected to each other, and the extent to which their interconnectivity influences the way Nepali practitioners implement cooperative federalism.

TABLE 12.1  The Multidimensionality of Cooperative Federalism in Nepal

Policymaking Politics

Inter-­provincial council explores avenues for collaborative policymaking

Policy Implementation

Service Delivery

Office of the Prime Ministry of Federal Minister and Affairs involves in Council of designing service Ministers connects delivery with provincial apparatuses at government federal and local agencies to jointly level implement certain projects and programmes Administration Bureaucracy-­led Administrative Collaboration with entities to make mechanisms to public, not-­for-­ policies at federal, implement policies profit and private provincial, and at federal, sector at various local level provincial, and levels of the local level government Fiscal Taxation and Ministry of Finance, Annual budget revenue-­sharing Provincial Finance speeches of all principles as Ministries and local three levels of the recommended by councils operate in government devise the National a way the NNRFC mechanisms to Natural Resources suggests, achieve fiscal aims and Fiscal particularly of each level of Commission through the government (NNRFC) at the formulation of federal level macroeconomic framework

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Policymaking

Three important political institutions devised in the constitution provide significant implication to the studies and practices of cooperative federalism in Nepal. The first is the Inter-­Provincial Council (IPC) consisting of two federal ministers (home affairs and finance) and provincial chief ministers. Chaired by the Prime Minister, the IPC has the primary role to explore solutions to any disputes that emerge in relation to formulating or implementing any public policy of political nature (Government of Nepal, 2015). The council can set up its own methodology of dispute resolution and can meet any time of perhaps the Prime Minister’s choice. The implication of the IPC to the studies and practices of collaborative federalism in Nepal is straightforward: members of the council can explore solutions to the problems that hinder the practice of collaborative federalism in Nepal. However, who declares what as the problem to hinder the practice of collaborative federalism is unclear. The efficacy of the council therefore is somewhat questionable. Perhaps as a consequence, evidence suggests that problems identified by provincial chief ministers have been either ignored or given less emphasis by the federal government (Subedi, 2021). Despite a growing number of problems identified by chief ministers of different provinces, only two meetings of the council were organised by the end of 2021. The political dimension of cooperative federalism in Nepal is thus contested, and such contests wane and wax over the period. Although the practical experience of the implementation of federal governance in Nepal is too short, incidents suggest that provincial governments are the ones who want the council to meet and discuss the possibilities of collaboration across both vertical and horizontal jurisdictions (Sapkota, 2018). Some analysts express that the provincial governments’ willingness to organise the IPC meeting frequently is natural because they want the federal government to introduce joint policymaking regimes in those areas outlined in the constitution (Devkota, 2021). The subject matter of such contestations varies significantly in terms of the ruling political party in the federal government and their counterparts in provincial governments. When the federal government is reigned by a rightist political party and provincial government(s) is/are led by leftists, contestations centre around ideologies, hence impacting the prospects for coordination in formulating public policies, their implementation, and thus overall service delivery regimes at the local level. Contestations also emerge regarding the distribution of taxes in certain policy areas such as vehicle registration and land transaction, though the strength of constitutional clarity in revenue distribution criteria has helped resolving such possible intergovernmental confrontations. The second entity to create a collaborative policymaking, implementation and service delivery apparatus in Nepal is the Provincial Coordination

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Council (PCC) devised by the Federation, Province, and Local Level (Coordination and Inter-­relation) Act, 2020. The PCC is led by the provincial premier composed of members of two provincial ministers, mayor’s/deputy mayors designated by the Chief Minister and chief/deputy chief of district coordination committees. The fundamental objective of this committee is to ensure programmatic and policy-­ relevant coordination and cooperation between local governments within the geographic jurisdiction of the relevant provincial government. Agendas are generally prepared by the provincial governments to be deliberated and discussed in the PCC meeting, though other members can also raise their concerns during the meeting. Each provincial government has its own experience of going through its PCC; yet, common agenda topics include provincial and local policymaking, implementation, and service delivery. Unlike the IPC, the structure and processes of the PCC seem relatively horizontal. In addition to the provincial representation in the council, local government representatives are nominated by the provincial Chief Minister. Although there is a danger of the nomination of only politically favourable representatives in the council, their participation in the PCC meetings could mean that members raise agendas to foster collaborative policymaking, implementation, and service delivery mechanisms within, between, and among local jurisdictions. Such prospects seem to be ultimately bringing positive vibration in boosting up collaborative governance in the federal setting of the government, though there does not seem much evidence to claim this possibility. The PCC thus offers prospects for harmonised intergovernmental relations by bringing institutions (federal, provincial, and local), actors (political and administrative), and processes (decision-­making; resource distribution) into a single domain where deliberations concentrate on ensuring appropriate cohesion within the intergovernmental regime. The third political entity to foster collaborative federalism in Nepal is the District Coordination Committee (DCC). The DCC is envisioned in the constitution as a way of facilitating local government coordination in the given district territory. There are nine members in the committee, all of whom must be directly elected for the local government council. Only elected councillors of local governments in each district territory are eligible candidates and voters to compete for the DCC membership, meaning that DCC chairperson, vice and other members are elected by electoral colleges. Two distinct functions of the DCC are significant to the subject matter of this chapter. First, DCCs are positioned in the middle of provincial and local governments. On the one hand, such placement helps DCCs to go downward to local governments with their constitutionally mandated function to coordinate among local governments, between local governments and private sectors and even between non-­governmental actors operating with each local government. This role facilitates horizontal coordination at the local level.

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Second, DCCs can work with governments in the upper level (provincial and federal) to ensure that no public policies, programmes and projects are overlapped. Through the tool of ‘annual review’, the DCCs can invite officials representing federal, provincial, and local governments and ask them to present the rationale of having (or not having) certain policies, programmes, and/ or projects in the relevant district (Government of Nepal, 2020). These two functions have been relatively effective in some districts (Bhusal, 2022, forthcoming), though it is difficult to generalise this outcome in all the 77 districts in Nepal. The emergence of DCCs in the federal setting provides an important institutional example to the praxis community of cooperative federalism. As the constitution devises ‘cooperation’ in both horizontal and vertical spaces of policymaking, implementation, and service delivery, the DCCs seem to be the best platform to each level of government for vertically and horizontally harmonising public policies, institutions, and processes. However, the existing landscape of DCCs appears somehow blurred for two reasons. First, they do not have sufficient ‘power’ and ‘resources’ to hold their presence in the institutional design of Cooperative Federalism in Nepal. Despite its constitutionally provisioned roles and rights, the DCC seems as ‘cheetah without claws’. Second, neither provincial nor local governments are legally obliged to go through DCCs in terms of making policies or implementing such policies. The provincial legislators are the only mechanisms through which DCCs would have been empowered; yet, none of the provincial legislators have promulgated any law – as envisioned in the constitution of Nepal – that would cover the institutional design, roles, and responsibilities of DCCs. Endogenous efforts of some DCCs have started showing some hope in ensuring both vertical and horizontal coordination (District Coordination Committee, 2019); yet, their effectiveness has yet to be reviewed. Policy Implementation

Public administration is the most important aspect in implementing the notion of cooperative federalism. When the federalist constitution was first proclaimed by the Constituent Assembly in 2015, there were not adequate administrative mechanisms to effectively deliver public services at the provincial and local level. Article 302 of the constitution, therefore, envisioning the public service delivery at provincial and local level shall be arranged by the federal government, although previous local bodies of the central government were constitutionally mandated to continue their functions outlined in the (now terminated) Local Self-­ Governance Act (1999). Such interim arrangement of administrative services to be maintained through provincial and local governments has tuned the role of the federal government to be the guardian of public service delivery. This particular notion of the role of

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federal government in providing provincial and local service delivery is still in practice, though elected local and provincial governments (after 2017) have taken over most of the interim roles of the federal government. Five attributes of administrative federalism characterise the notion of cooperative federalism in Nepal. First, managing human resources at provincial and local level remained as one of the key interim functions of the federal government at the time when the entire government structure was on the verge of transitioning towards federalism. Several cabinet and ministerial decisions were taken to set criteria to distribute (then) centrally recruited civil servants across provincial and local governments. Such decisions were later condensed into a legislation to enforce mandatory deployment of civil servants across jurisdictions, yet the role of federal government remained dominant in not only deploying human resources but also developing principles of recruitment, retainment, advancement and retirement (Government of Nepal, 2019). Although many provincial governments have initiated to form their own public personnel recruitment systems, the constitution clearly demands them to remain consistent with the principle of public personnel management prescribed by the federal government. Key elements of the personnel management system such as meritocracy, inclusion and fair promotion system must be followed by provincial governments. Second, standard operating procedures for public designing and delivering public services at provincial and local level are generally determined by the federal government (Ministry of Federal Affairs & General Administration, 2021). It is natural to think of the role of civil servants in developing standards, rules, and structures for delivering services. In many circumstances, it appeared that provincial and local governments imitated federal government style in terms of designing institutions and processes for service delivery (Local Governance & Community Development Program, 2019). On the one hand, such imitation caused positive vibration in the relevant jurisdiction because such standards were already tested by service providers and accepted by citizens. The other side of the story is that there are only very few provincial and local governments who moved ahead with a new set of rules, standards, and structures of service delivery. Nevertheless, standard operating procedures of the federal government have been instrumental in boosting up cooperative federalism in Nepal. Third, provincial and local level bureaucratic structures also exhibit some characteristics as to how Nepal’s administratively Cooperative Federalism is designed. Almost all provincial and local governments have structured their bureaucratic apparatus in a way that they reflect the federal civil service system. The principal secretary and secretaries of provincial line ministries are the representatives of the federal government, while their associates are recruited by provincial governments themselves. Similarly, the chief administrative officer and chief accounting officer represent the federal government in the local

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government structures. This bureaucratic representativeness links local and provincial governments with the federal government, hence, leveraging for better collaborative governance within the federalist setting. Fourth, administrative accountability of political actors such as the ministers at the provincial level and mayors of local governments is as sensible as with federal ministers’ accountability mechanisms. This includes both horizontal and vertical accountability channels. On the horizontal side, local and provincial elected authorities must withhold their accountability towards legislatures, viz. municipal councils at the local level and sectoral committees of provincial legislative body. On the vertical side, subnational governments are accountable to the federal government for certain administrative decisions, although this notion of vertical accountability of elected politicians is generally contested based on inter alia constitutional autonomy of provincial and local governments (Lawoti, 2019). Although there remains the question of the extent to which federal government officials are accountable to subnational governments, the notion of vertical accountability – as provisioned in the constitution and other relevant legislation – seems to flourish cooperative federalism in Nepal. Service Delivery

One of the ubiquitous objectives of the federalist constitution in Nepal is the thirst of cooperative service delivery among federal, provincial, and local governments. Although each level of government has its own constitutionally assigned subject areas of public services, there are several mechanisms between jurisdictions that allow governments in different levels to deliver public services together. What is peculiar about these mechanisms is their owners: each level of government has its own leading role in certain service delivery mechanisms, whereas in other cases they participate as collaborators. In principle and based on the specific list of constitutionally devised responsibilities, the federal government is involved in delivering projects and programmes of national priorities and importance (NPC, 2021). The National Planning Commission, the federal think-­tank entity led by the Prime Minister, coordinates with a range of federal and provincial agencies in ensuring cooperation, particularly in relation to the smooth implementation of high-­priority programmes. Similar institutions have been created at the provincial level with the hope to coordinate provincial level service delivery mechanisms with local government entities. While coordinating from the top may have several drawbacks, the experimentation of top-­down softcore policy coordination for the last five years has resulted in producing some form of harmonisation in the design and delivery of public services in federal Nepal (Acharya, 2021). In addition to these authoritative top-­down or vertical mechanisms of public service delivery, a range of non-­governmental actors also appear at federal,

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provincial, and local level. These actors include private sector entities, cooperative organisations, and civil society organisations. Many of such organisations are authorised by the governments at the local and provincial level with a specific set of outcomes to be achieved; yet, their foremost prerequisite has been to ensure proper cooperation with all levels of government agencies. Organisations such as the District Coordination Committees also facilitate proper coordination in public service delivery at the local level (Bhusal, 2022). Two crucial aspects of cooperation in service delivery need to be extracted. The first is the question of (co)investment in the delivery of public services. The specific task assigned to each level of government seems to encourage the individual government to lead the service delivery process. Leading naturally demands each level of government to have its own investment plan. In the last five years of the implementation of the federalist constitution in Nepal, there does not appear much evidence in regard to sharing investment among horizontal entities at the local, provincial, and federal level. This has created a scene in which some degree of co-­investment can only be seen in the vertical structure of the federation. Nevertheless, many municipalities have been found to encourage residents to come up with a certain proportion of investment should they need any infrastructure development programmes in their communities (Bhusal, 2019a; Pandeya & Shrestha, 2016). The proportion of investment contribution largely rests upon the judgement of the respective municipal council, though it seems common that poorer communities are asked to contribute less money than their richer counterparts (Butwal Sub-­Metropolitan City, 2018). Labelled as collaborative policy implementation, the efforts of local level cooperation in designing and delivering small-­scale programmes and projects have been widely appreciated (Bhusal & Pandeya, 2021). The second crucial aspect of cooperation is the notion of designing public sector institutions for service delivery. When collaborative projects are designed, the institutional design in which decisions are made, services are designed, and thus public services are delivered to intended citizens. The principal implementing agency at the certain level of government seems to play key role in setting up the institutional design principle, which might underestimate the ideas/ideologies of other actors (level of governments) in the collaborative framework. Although the constitution aims to have common administrative principles to be adopted across jurisdictions, each level of government is politically autonomous in setting up administrative ideas to implement certain programmes – be it a standalone programme or collaborative project. This leads us to think of the quality of cooperative federalism in Nepal. The constitutional aim of adopting the principle of cooperative federalism is – to some extent – hindered by the degree of political autonomy each level of government is entitled to. If jurisdictions continue to claim their autonomy in a way that they are not adhered to follow administrative principles of the

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other level of government, the quality of cooperative federalism might plunge into deterioration. The available coordinating agencies such as the National Planning Commission or Provincial Planning Commissions do not seem effective in enhancing the quality of cooperative federalism in Nepal. Other political entities such as the Office of Prime Minister and Council of Ministers also cannot dictate with any specific tool of cooperation across jurisdiction, as it may produce countervailing political contestations and conflicts between the federal government and provincial governments. These discussions generate interesting perspectives to the principles of ‘autonomy’ and ‘dependency’. The constitution has clearly outlined these principles as the core of ‘cooperation’, yet they seem to have been devised to be implemented in a somewhat controlled atmosphere (Bhusal, 2022). Autonomy of local governments seems politically clear but local governments are not adequately autonomous in terms of administrative and financial functions. Administrative officers are coercively deployed by the federal government, and financial activities – especially revenue generating domains – need to be channelled through federal and provincial budgetary processes. This is how Nepal’s subnational entities are gradually advancing towards becoming dependent on agencies of the federal government. Although it is too early to say, there appears a danger to (re)centralise aspects of public policy, hence transforming Nepal’s federalism from cooperation to centralisation. This chapter therefore argues that the best avenue for starting to exercise cooperative federalism in the design and delivery of public services is at the juncture of provincial and local governments. Two underlying logics are brought into the spotlight. The first is the possibility that provincial governments offer local governments to be their helping hand in the ‘implementation’ of many – if not all – programmes and projects devised by the respective provincial government. This argument is justifiable because the ultimate implementation venue is at the local level, and that if local governments are made responsible to implement such programmes and projects, the degree of ownership and thus quality of work can be maintained. The second logic is the possibility of local governments seeking to top up their already available development fund with the help of provincial governments. In the short run, such programmes and projects would appear as collaborative projects. In the long run, they will gradually develop a culture of co-­investment between provincial and local governments in implementing developmental programmes in their territories. Conclusion

New federal countries – especially in the global south – are increasingly embracing the notion of cooperative federalism, perhaps learning from the classical understanding of competitive federalism in many advanced

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countries in the north. As a concept, cooperative federalism is neither panacea to previously unresolved problems of federal structures nor alternative to other forms of federalism such as competitive federalism. What is peculiar is that when governments decide to design federal structure, particularly in line with the ‘holding together’ principle, it is essential to grasp elements of cooperative federalism in its institutions and processes. This chapter brought empirical evidence from Nepal’s newly evolving notion of cooperative federalism. Analysed through the lens of policymaking, policy implementation and service delivery, it appeared that all three levels of government, viz. federal, provincial, and local governments, often work together – showcasing Nepal’s governance structure as having multiple elements of cooperative federalism. While the constitutional annexes of activities to be performed by each level of government are the key instigators to progress towards cooperative federalism, the separation of policy areas in the constitution is understood as potential hindrance to realise the essence of cooperation amongst jurisdictions. Cooperation in making public policies, implementing such policies, and delivering public services of diverse types is obviously a complex governmental business. It is often argued in the literature that centralised countries with unitary systems of government are more successful in cooperation among national and subnational entities than federal countries (Hoggett & Hambleton, 1987). Nepal’s own experience of the unitary system of government also features similar stories (Abullaish, 1980; Dhungel, 2004). Nonetheless, the evolution of cooperative federalism in recent times and its adoption in Nepal’s constitution shows great hopes for the study and practice of cooperative, coordinated, and collaborative aspects of public policymaking, implementation, and service delivery. References Abullaish. (1980). An Evaluation of Administrative Decentralization in Nepal. Kathmandu: Centre for Economic Development and Administration. Tribhuvan University. Acharya, Bhimarjun. (2007). A Hand Book of Constituent Assembly. 2nd ed. Kathmandu: National Peace Campaign. Acharya, Bhimarjun. (2013). “Why the new constitution matters.” Kathmandu School of Law Review. 2 (1). 186–190. Acharya, Keshav Kumar. (2021). “Federalism Practice in Nepal: Does it Move in the Expected Course?” Dhaulagiri Journal of Sociology and Anthropology. 15 (1). 20–34. http://www.nepjol.info/index.php/DSAJ)&DOAJ Acharya, Keshav Kumar, and Anil Chandrika. (2021). “Federalism Practice in Nepal Prospects and Upshots.” Journal of South Asian Studies. 9 (1). 14. https://doi. org/10.33687/jsas.009.01.3403. https://www.journals.esciencepress.net/index.php/ JSAS/article/view/3403/1915

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Acharya, Keshav Kumar, and Habib Zafarullah. (2020). “Institutionalising federalism in Nepal: operationalising obstacles, procrastinated progress.” Public Administration and Policy: An Asia-­Pacific Journal. 23 (2). 125–139. https://doi. org/10.1108/PAP-­03-­2020-­0013 Bhattacharya, Harihar. (2020). Federalism in Asia: India, Pakistan, Malaysia, Nepal and Sri Lanka. 2nd ed. London: Routledge. Bhusal, Thaneshwar. (2019a). “Do Informal Forums Matter? Lessons from Nepal’s Local Policymaking.” The International Journal of Community and Social Development. 1 (4). 310–331. https://doi.org/10.1177/2516602619896187 Bhusal, Thaneshwar. (2019b). “Nepal’s federalist ambiguities.” London School of Economics South Asia Blog. September. https://tinyurl.com/bytptwmc ———. (2020). “Citizen participation in times of crisis: Understanding participatory budget during the COVID-­19 pandemic in Nepal.” ASEAN Journal of Community Engagement. 4 (2). 321–341. https://doi.org/10.7454/ajce.v4i2.1103 ———. (2022). “Understanding local government coordination: An assessment of District Coordination Committees in Nepal.” State and Local Government Review. 54 (1). 68–81. https://doi.org/10.1177/0160323X221087909 Bhusal, Thaneshwar, and Breen, Michael. (2021). “Federalism and local governance: Exploring multilingualism in local decision-­making in Nepal.” Regional & Federal Studies. https://doi.org/10.1080/13597566.2021.1940970 Bhusal, Thaneshwar, and Ganesh Pandeya. (2021). “Ordinary people’s participation in local development planning in Nepal.” Development in Practice. 32 (2). https:// doi.org/10.1080/09614524.2021.1907538. https://www.tandfonline.com/doi/full/ 10.1080/09614524.2021.1907538 Breen, Michael G. (2018). “The origins of holding-­ together federalism: Nepal, Myanmar, and Sri Lanka.” Publius: The Journal of Federalism. 48 (1). 26–50. Butwal Sub-­ Metropolitan City. (2018). “Tole Lane Organisation Coordination Committee and Mobilisation Procedures, 2018.” Local Gazette of the Butwal Sub-­metropolitan City. 1 (4). 1–18. Chamlagai, Abi. (2021). “Nepal: Tarai/Madhesh Movements and Political Elites.” Journal of Asian and African Studies. 56 (4). 949–963. https://doi.org/10.1177/002 1909620954881 Devkota, Khim Lal. (2021). “Things to do before the budget.” The Kathmandu Post. Accessed 20 November 2021. https://tinyurl.com/3praa4t5 Dhungel, Dwarika N. (2004). Decentralized Governance: A Perspective for Nepal. Bangalore, India: Center for Public Policy, Indian Institute of Management. District Coordination Committee. (2019). District Coordination Guidelines. Rasuwa, Nepal: District Coordination Committee. Fawcett, Paul, and David Marsh. (2017). “Rethinking Federalism: Network Governance, Multi-­ level Governance and Australian Politics.” In Multi-­level Governance: Conceptual Challenges and Case Studies from Australia, edited by Katherine, A. Daniel and Adrian, Kay, pp. 57–80. Canberra: The Australian National University Press. Fletcher, Christine, and Cliff Walsh. (1992). “Reform of Intergovernmental Relations in Australia: The Politics of Federalism and the Non-­Politics of Managerialism.”Public Administration. 70 (4). 591–616. https://doi.org/10.1111/j.1467-­9299.1992. tb00958.x. https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1467-­9299.1992. tb00958.x

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Gagnon, Alain-­G., and Arjun Tremblay. (2019). “A Research Agenda for Federalism Studies.” In Federalism and Diversity: ANew Research Agenda, edited by John Kincaid. Cheltenham: Edward Elgar Publishing. Ginsburg, T., and A.Z. Huq, eds. (2020). From Parchment to Practice: Implementing New Constitutions. New York: Cambridge University Press. Government of Nepal. (2015). The Constitution of Nepal. Kathmandu: Nepal Law Commission. Government of Nepal. (2019). Public Personnel Adjustment Law. Kathmandu: Nepal Law Books Management Committee. ———. (2020). Federation, Province and Local Level (Coordination and Inter-­ relation) Act, 2020. Kathmandu: Nepal Law Commission. Hoggett, Paul, and Robin Hambleton, eds. (1987). Decentralization and Democracy: Localising Public Services. Vol. 28. Bristol: School for Advanced Urban Studies. Hueglin, T.O., and A. Fenna. (2015). Comparative Federalism: A Systematic Inquiry, 2nd edition. Canada: University of Toronto Press. Lawoti, Mahendra. (2019). “Mono-­ethnic federalism in a poly-­ethnic Nepal.” In Identities in South Asia: Conflicts and Assertions, edited by Vivek Sachdeva, Queeny Pradhan and Anu Venugopalan. London: Routledge. Local Governance and Community Development Program. (2019). Annual Progress Report. Ministry of Federal Affairs and General Administration. Kathmandu: Local Governance and Community Development Program. Loughlin, John, John Kincaid, and Wilfried Swenden, eds. (2013). Routledge Handbook of Regionalism & Federalism. New York: Routledge. Ministry of Federal Affairs and General Administration. (2021). Internal Control System Formulation Directives (Sample) for Local Governments. Kathmandu, Nepal: Ministry of Federal Affairs and General Administration. National Natural Resources and Fiscal Commission. (2019). First Annual Report, 2019. Kathmandu: National Natural Resources and Fiscal Commission. National Planning Commission. (2018). Local Level Planning Formulation Guidelines. Kathmandu: National Planning Commission. National Planning Commission. (2021). The Fifteenth Plan. Kathmandu: National Planning Commission. Paleker, S. A. (2006). “Federalism: A Conceptual Analysis.” The Indian Journal of Political Science. 67(2). 303–310. http://www.jstor.org/stable/41856217 Palermo, Francesco. (2015). “Participation, Federalism and Pluralism: Challenges to Decision Making and Responses by Constitutionalism.” In Participation, Federalism and Pluralism: Challenges to Decision Making and Responses. 31. The Netherlands: Brill | Nijhoff. Pandeya, Ganesh Prasad, and Shree Krishna Shrestha. (2016). “Does Citizen Participation Improve Local Planning? An Empirical Analysis of Stakeholders’ Perceptions in Nepal.” Journal of South Asian Development. 11 (3). 276–304. Sapkota, Rewati. (2018). “Inter-­provincial council meeting likely to be held in mid-­ November.” The Himalayan Times, 2018. Accessed 2021, November 20. https:// tinyurl.com/2p93yrry Subedi, Giridhiari. (2021). “Retracted: Interprovincial Relations in Formative Phase of Federal Nepal.” Journal of Political Science. 21. 9–18. https://doi.org/10.3126/ jps.v21i0.35259

13 COOPERATIVE FEDERALISM IN A MULTINATIONAL COUNTRY Examining the Case of Pakistan Stefy V. Joseph and Jairam R. Prabhu

Introduction

The federal idea is considered as a device for bringing nations together, for preserving them and at the same time, developing a sense of common nationality. Hence, federalism is considered as the most suitable form of government for multinational countries. A multinational country refers to a state or a country comprising multiple nations based on religious, ethnic or cultural lines. Multinational countries require decentralisation and diffusion of power, which will ensure the accommodation of multinational groups without weakening the union. The coordination between the union government and the respective constituent units is essential to avoid conflicts of centralisation and domination in states that are multiethnic, multireligious, multicultural and multilingual. These countries consist of many such constituents within their borders, hence accommodating diversity and maintaining the union is the most important aspect of a multinational federal country. Thus, the federal form of government in multinational countries has the role of a unifying force and a means to maintain diversity (Burges, 1999). Pakistan can be considered as a multinational country with its diverse society in terms of ethnic, linguistic and religious composition. Pakistan was partitioned out of India as a separate state for Muslims in the subcontinent. The 1971 creation of Bangladesh showed that Islamic identity was not enough to prevent the country from splitting up, which can be considered as an evident failure of federalism in Pakistan (Adeney, 2007). The crisis regarding Pakistani federalism is far from over, with demands for more autonomy and concern of ethnic separatism being prominent. The diversity within the territory of the country was ignored in the nation-­building process and the DOI: 10.4324/9781003461197-18

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issues faced by ethnic minorities continue to remain ignored (Ali, 2005). Safeguarding the country intact from internal conflicts and proceeding for economic progress is important with regard to governance and policymaking in a multinational country. This chapter covers the nuances of multinationalism in Pakistan and the need for cooperative federalism in Pakistan to ensure the successful working of federalism in the country. Pakistan, as a federal country, consists of four provinces, two administrative territories, an autonomous region and a federal capital territory. The provinces are Punjab, Sindh, Khyber-­Pakhtunkhwa and Balochistan; administrative regions are Azad Kashmir and Gilgit-­ Baltistan; Federally Administered Tribal Areas were merged into Khyber-­Pakhtunkhwa in 2018 and Islamabad – the Capital Territory (Ahmar, 2016). Pakistan has a diverse ethnic composition, with Punjabis comprising 44.7%, Pashtuns 15.4%, Sindhis 14.1%, Saraiki 8.4%, Mujahirs 7.6%, Balochis 3.6% and others 6.3% of the population (CIA, 2022). The most widely spoken languages are Punjabi, Sindhi, Pashto, Urdu, Balochi along with several other languages spoken by minorities (Rahman, 1997a). Punjabis comprise more than 40% of the population and continue to dominate bureaucracy, the military and several key governmental agencies, alienating the rest of the Pakistani society. This alienation has led to the rise of Baloch nationalism and Sindhi nationalism, in addition to several small ethnic and tribal minorities seeking autonomy based on cultural and ethnic identities. Over time, Punjab’s share of Pakistan’s population has been decreasing, which is a sign of the growth of other ethnic groups. Since half of the GDP of Pakistan is contributed by the Punjab province, there exists economic inequality amongst the provinces besides ethnic and linguistic inequalities (World Bank, 2005). The geography of the Punjab province enables a high concentration of population whose main economic activity is agriculture. A majority of Pakistan’s big cities, barring Karachi and Peshawar, are situated in Punjab. Its proximity to Islamabad geographically provides it with the added advantage of connectivity and high economic growth, making it the leading industrial and manufacturing hub. Politically speaking, the ruling party of Pakistan cannot win without winning Punjab significantly, which puts parties like the Pakistan People’s Party at a significant disadvantage despite having been part of the ruling regime multiple times (Murtaza, 2017). Post-­1971 reforms forced the state to provide reserved seats for both women and non-­Muslims in both houses of the Pakistani Parliament. Cooperative Federalism in Pakistan

The right to self-­ determination is an important aspect of customary ­international law which emerged in the second half of the 20th century. Modern societies today emerged through various forms of the same idea of

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self-­determination and consciousness of a nationalistic feeling. Borders were drawn and redrawn based on culture, ethnicity, language, religion etc. The state formation never ended there; the rise of subnationalism and issues of secession have emerged within these states, where the domination of certain identities existed. Most of the countries with colonial history used federalism as a tool to share power in order to accommodate diversity (Moreno, Colino & Kincaid, 2010). Federalism plays an important role in complementing the attributes of democracy by creating a society which values civil and political rights in the true spirit. Federalism is a combination of self-­rule and shared rule (Elazar, 1987), which would mean provinces have the ultimate right to decide what happens within their frontiers as well as share powers with the Union government over various subjects of national interest. Cooperation and collaboration between the federal government and constituent units are essential for the welfare of the citizens and to ensure a frictionless governance model. The basic features of federal systems tend to remain the same across the world. The union holds the key to various powers like defence, finance and foreign policy, while powers relating to day-­to-­day activities are delegated to the units. States have certain legal functions granting recognition to the population living inside its territory and making sure they live in a just society. Seven out of eight large countries in the world have a federal structure as a means to organise the society (Derbyshire & Derbyshire, 1999). Managing large and diverse countries require a strong federal framework, making federalism a preferred form of nation-­building in multinational countries. Like its neighbour India, Pakistan is the product of the same colonial history and decolonisation. Hence there are multiple overlaps in how India and Pakistan have their governance systems, as both countries were governed under the Government of India Act in 1935, which established a federal form of administration in British India (Sayeed, 1954). According to the Act, both countries framed a strong union which is divided into small constituent units that came together as a state under the idea of a nation. The Act was in force until 1956 when Pakistan got its first constitution. Even the first constitution of Pakistan was fully a creation of the political elites, which failed to build a country that was representative of all segments of the society. Several political and economic factors have contributed to the problem of federalism not being effective in Pakistan. Pakistan never went through popular movements and democratic experience, like that of India. The Northwest Frontier Province under British India, the present-­day Khyber Pakhtunkhwa and FATA, was used as a security state. Thus, this area has had a strong military institution and a very weak democratic setup. Similarly, Balochistan was also ruled separately without any political representation or mainstream integration. Undivided Punjab, on the other hand, was the recruitment hub of the British military. This continued even after the independence, when the

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Pakistan army recruited its personnel primarily from Punjab, creating overdominance of a single province in the affairs of the country (Brass, 2010). All these problems related to military tensions blocking the percolation of the benefits of federalism can be traced back to the colonial past. Despite the erratic model of governance seen after independence, reforms were brought in after the bifurcation of the country into Pakistan and Bangladesh. The third constitution of Pakistan, framed and adopted in 1973, proposed a federal framework, which is in effect to date (Jaffrelot & Rais, 1998). It was the first time a proper model of federalism was adopted in the country, which could fulfil the criteria of federal system, at least on paper. The framework was accommodative of various minority groups since Pakistan learnt its lesson after losing the eastern half of the country in 1971. Through the 1973 constitution, Pakistan adopted a bicameral legislature, that created a US-­modelled legislature with equal representation to all the provinces (Waseem, 2011). The 18th constitutional amendment in 2010 gave more autonomy to provinces (Munawar & Mushtaq, 2022). Pakistan went through multiple periods of crisis when the military administration tried to undermine the constitutional framework weakening federalism and centralising power. Stepping of the army into the federal politics of Pakistan under the pretext of maintaining stability in the country provided short-­term relief but left with long-­term damage. This emphasises the fact that military rule and overthrow of elected governments only lead to further concentration of authority into few hands (Waseem, 1994). Federalism is yet to be properly crystallised in the country to make sure all minorities, religious or ethnic enjoy the same rights and privileges as the majority and dominant groups. The important aspects of cooperative federalism include giving more powers and autonomy to the states, strengthening union–state relations and the process of decentralisation. Pakistan today is yet to figure out whether federal models in multinational countries around the world such as the USA, Canada, India and Mexico can be emulated in the country to enhance cooperative federalism (Shah et al., 2022). Questions can be raised on Pakistan’s federalism tautology, given that even its democratic credentials have come under scrutiny. Pakistan has seen years of military rule, and even when civilian parties are elected to power, it is often backed by the army. Leaders who tried to mobilise popular support were either assassinated or had to leave the country. Apart from this lies the challenge of accommodating diverse groups-­, meeting the aspirations of the people and also managing the hardliner political groups, which act as a massive lobby group that no party can ignore. Punjab has always had the upper hand on the country’s resources and political power. The increased divisions within the country and direct contest between Punjabis and Bengalis as the dominant ethnic groups led to civil war and, later, the bifurcation of the country. Federalism is aimed at addressing

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the matter of inclusion and ensuring that people’s right to self-­determination is protected within the existing framework. This was not followed in Pakistan, where people’s aspirations were twisted to suit the larger narrative of nation-­ building. There were attempts made by leaders like Ayub Khan and Yahya Khan to introduce a presidential form of government through the policy of uniting the country through religion. A similar attempt was made by Zia ul Haq and leaders of the recent past, such as Parvez Musharaff, that could damage the ethno-­linguistic fabric of Pakistani society and cooperative federalism in the long term. Allocation of resources to provinces is one of the most important functions of the union or federal government, and different countries follow their own criteria in doing so. Pakistan always had the challenge of fixing the ideal criteria for the same. Historically, both Sindh and Punjab have been in a feud with each other on the allocation of resources to provinces. Both Khyber Pakhtunkhwa and Balochistan wanted the ‘backwardness’ of their states to be considered. In the 1960s, Pakistan’s capital was shifted from Karachi to Rawalpindi and finally to Islamabad, which paved a new extent of Punjabi hegemony. Sindh’s political clout has further reduced since then. Hence, any initiative of cooperative federalism in Pakistan cannot ignore the internal economic inequality between the provinces. The 1973 Constitutional Amendment brought in Article 153 that established the Council of Common Interest (CCI). It was only in the year 2021 the federal government came up with a proposal for building a permanent secretariat based on the 2016 cabinet decision (The Dawn, 2021). As per the amendment, CCI would comprise the President and equal membership of the provinces and the federation. The functions and provisions of the council are mentioned in Article 154. The 18th amendment in 2010 strengthened the system of cooperative federalism in the country by enhancing the powers of the council. It also required an annual report to be submitted to the Pakistan Parliament. As per article 154, the council must meet at least once in 90 days, and the decision of the council is taken by the vote of the majority (Ahmad, 2022). The establishment of this council was path-­ breaking in adopting steps towards cooperative federalism in the country for the first time. The powers of the Parliament were significantly reduced and shared with CCI. It had the powers to make decisions on both Federal and Concurrent Legislative List. The most recent 18th Constitutional amendment, based on the suggestions of the Special Parliamentary Commission on Constitutional Reforms (SPCCR) appointed by Prime Minister Asif Zardari, was instrumental in strengthening cooperative federalism. This commission was set up to undo the mistakes of concentration of power which happened under General Musharaff’s period. The concurrent list in the constitution was abolished, which legally gave the power to the federal government to override state laws

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through central laws. This is unlike India, where the concurrent list is still very important and the union government has overarching control over several areas of administration. In addition to the constitutional and legal changes, the 7th National Finance Commission (NFC) increased funds to the provinces (Bengali, 2022). The aim was to match the spending of provinces at par with those of federal countries in the West, where provinces spend more than the federal governments (Uddin, 2010). The 25th amendment was successful in merging and integrating FATA into the federal system of Pakistan (Ullah, 2020). This is expected to give more control to people in tribal areas, which has always been at the behest of Islamabad. Starting from 1947, Pakistan has struggled to establish a strong constitutional framework conducive to the adoption of cooperative federalism. Due to the internal rifts, the issues between the provinces and the federal government, cooperative federalism in the country has taken a back seat, which needs to be addressed through political, social and legal reforms. Pakistan as a Multinational Country

The national integration entails establishing assimilation through a common identity and providing more space for diverse groups through accommodation and autonomy. Pakistan has witnessed the breakup of its territories due to the lack of accommodation of ethnic groups (Bhattacharyya, 2020). Pakistan has a significant population of Hindu–Christian minorities, which has seen a considerable reduction in recent years. The rationale of federalism as a mechanism for the sustenance of Pakistan as a multinational country is very relevant in this context. Even after 75 years of independence, Pakistan has ethnic groups fighting for their rights. Different ethnic groups have been seeking more power and representation in the political structure, the absence of which has led to the rise of separatist movements (Amin, 1993). Pakistan’s political leaders tried to use Islam as a national unifier, which could bring in homogenisation in the country. The Urdu language played a pivotal role in evoking a sense of Muslim separatism in British India and bringing up the idea of Pakistan (Rahman, 1997b). Hence, Urdu was declared as the national language in Pakistan along with English, and the elites always had a vested interest in promoting the language (Rahman, 1997b). That never stopped protests by Bengalis of East Pakistan against the Urdu imposition (Rahman, 1997b). A major factor attributed to the formation of Bangladesh is the resentment of the Bengali population from the eastern half against the imposition of Urdu (Kennedy, 1993). Urdu, even today, overshadows all provincial languages, which had been a point of contention against the Federal government’s Islamisation (Amin, 1993). Sindhi was given the status of provincial language only in 1973, while in recent times, Urdu has been suffering due to the predominance of English.

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The European style of nation-­building through a strong central government can be dangerous and self-­destructive in the context of multinational countries like Pakistan. Even though Pakistan as a country was created based on the religion Islam, there exist disagreements on the type and interpretation of Islam in the country. The rise of ethnic and Islamist extremist organisations can be attributed to the negligence and lack of proper representation in the decision-­making process. One such instance would be the alienation of Ahmadis in Pakistan after the 1962 declaration of the Islamic Republic by Zulfikar Ali Bhutto since they did not come under the conventional idea of Islam. In late 2022, the Pakistani Taliban decided to wage war against Pakistan and called for the withdrawal of democratic reforms in specific enclaves in FATA (Subramanian, 2023). According to them, democracy and Sharia law cannot go hand in hand. If the basic tenets of democracy is questioned, the debate on federalism is virtually over. Post-­1971 was a period of intra-­migration in West Pakistan, forcing the provincial capitals, which are large urban centres, to become more diverse and cosmopolitan. This was, albeit the widespread ethnic stereotypes prevalent in the post-­ colonial Pakistani society, providing a context for ethnic conflicts (Kennedy, 1993). Jinnah and Liyaqat Ali Khan had governments dominated by Mojahirs, who were immigrants from India residing in the Sindh Province (Ranjan, 2014). Their influence in the bureaucracy died down when Ayub Khan brought the Punjab–Pashtun axis into the military (Jaffrelot and Rais, 1998). The massive underrepresentation of Bengalis in bureaucracy and military acted as a catalyst for total Bengali alienation in both wings of Pakistan. Bengali demand for more autonomy in their region prompted other ethnic communities to make similar demands (Akhtar, 2009). Gilgit Baltistan was under the shared rule of the Gilgit Agency and the Dogra dynasty before joining the dominion of Pakistan. This, along with Azad Kashmir, is part of specially administered areas in Pakistan. The Karachi agreement was instrumental in the division of powers, but the prevalence of a strong centre continues till today. Azad Kashmir, which was part of the princely state of Jammu and Kashmir, joined Pakistan after the Tribes invaded the state, forcing an annexation. Just like India had provided special status to the state of Jammu and Kashmir, Northern Areas also have similar provisions in the Pakistan constitution. There exists a separate Federal Ministry for the administrative affairs of the region alongside the Northern Areas Council, which is an advisory body that holds no executive powers. It also has a separate Supreme Court, and the Pakistani Supreme Court has no jurisdiction over the Northern Areas. In 1981, the Pakistani Citizenship Amendment act of 1951 was made applicable to the Northern areas, granting the residents the citizenship and nationality of Pakistan (Raman, 2004). Despite this, the citizens are denied their civil and political rights, including fundamental rights. Pakistan, despite being vocal on Indian actions in Kashmir, vis-­a-­vis, abrogation of autonomy

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to the state of Jammu and Kashmir, is silent on the region of Kashmir it controls, which India stakes a claim on. These areas still struggle for self-­rule and their constitutional rights like the people in other provinces. Balochistan, being the largest province in the country, remains neglected. The Pakistani army has successfully been able to suppress the call for independence and Balochi nationalism, although the movement still thrives. The political elite and military leaders in Pakistan have used Islamisation to suppress the demands and aspirations of ethnic minorities, and Balochi identity continues to be overshadowed by religion. Baloch nationalists rejected Islamisation as they understood that it was a ploy of Islamabad to exercise control and suppress these sub-­national voices. Insurgent groups like Baloch Liberation Army have sought India’s support for its liberation, and these groups have used various international forums to garner support. The reasons for the Baloch insurgency can be attributed to socio-­economic and ethnic factors (Grare, 2013). Issues of law and order, in addition to the adverse nature of the terrain, have put the province on the back foot, making it unattractive for economic activity. The federalisation of the constitution in recent decades has helped to simmer down the anger, but more autonomy must be given to ensure that all socio-­economic groups are treated well within the provincial framework. The amount allocated to the provincial government has not penetrated where it should have gone due to corruption and wasteful expenditure (Grare, 2013). The call for Paktunistan is a unique movement that extends beyond the territorial borders of Pakistan, stepping into the North-­ West Frontier Province. Pashtun nationalism calls for a united nation of Pashtuns of Pakistan and Afghanistan, which is divided across the border, the Durand line. The border drawn by the British divided the entire Pashtun community into two countries. The Soviet invasion of Afghanistan and the retaliation by Pakistan and Western forces worsened the situation, leading to tribal groups getting arms and the ability to call for separatism and the formation of a nation for Pashtuns. This also led to the breakup of traditional tribal political structures giving rise to radicalised Pashtuns as a product of Afghan Jihad (Cheema & Yousaf, 2020). Since this misstep, the long-­term stability of the region is at stake due to extremism and militancy in the region affecting both Afghanistan and Pakistan. The USSR was also alleged to have used the Free Paktun movement to leverage against Pakistan during the cold war (Rose, 1986). The Durand line remained porous until recently when Pakistan completed the fencing of the border. Since 2001, FATA has been a safe haven for Taliban insurgents fleeing the US war on terror (Zissis, 2007). The US drone attacks and frequent Pakistani anti-­terrorism operations in FATA have not helped to stabilise the situation (Yousaf, 2020). All the provinces in Pakistan as well as regions like Azad Kashmir and Northern Areas are marred with ethnic conflicts of various degrees. The

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Balochistan and Paktunistan movements, lack of integration of Kashmiris into the mainstream, insurgency in FATA and Khyber Pakhtunkhwa with the re-­ emergence of Taliban, and notably, the failure of Pakistani leaders in unifying the country are cases in point. This showcases a fundamental flaw in the country’s federal system in accommodating diversity, which can be addressed to a great extent by adopting the principles and spirit of cooperative federalism. The Need for Cooperative Federalism in Pakistan

Federalism and democracy go hand in hand since the fundamental principle of federalism is non-­domination followed by non-­discrimination. The implementation of cooperative federalism is done through a strong institutional setup. The Constitution cannot function without institutions that will uphold and support it. In a country like Pakistan, establishing such institutions and empowering them should be the next step to be thought of. The recent attempts in Pakistan to do away with the strong centre is a step in the right direction in establishing cooperative federalism. Amending the constitution was the first step, but the benefit of such a reform needs to go down to the provincial system and party systems to reach the people. Cooperative federalism will also need the backing of civil society and political parties. The frequent military rule prevents the institutions from evolving stronger, unlike in the case of India where the rise of regional parties demands more from the federal system. Pakistan, with only a handful of parties, might find it harder to create the atmosphere compared to India, which has multiple regional players whose demands remain crucial for deciding the power balance in the country. The earlier binary between Pakistan People’s Party (PPP) and Pakistan Muslim League-­Nawaz (PML-­N) and the present binary between Pakistan Muslim League-­Nawaz (PML-­N) and Pakistan Tehreek e Insaaf (PTI) has left very less scope for improving the system when these players also hold the powers in the provinces. PPP has now lost its significance at the national level and confined itself to the Sindh province. In India, states like Tamil Nadu and West Bengal with strong regional political parties have created strong opposition against the union government, resulting in higher bargaining power for provinces. In Pakistan politics, the party that gains the majority in Punjab usually rules the country, reducing the scope for coalitions and mixed-­party rule. The most recent development of PML-­N and PPP coming together to share power to keep PTI out is beneficial for federal politics and cooperative federalism at large. As a multinational country, Pakistan cannot be ruled from the centre and can never be homogenised. Pakistan is the one of the few countries in the world created on the basis of religion (Kumaraswamy, 1997). The 1971 example reiterates that religion cannot substitute for other diversities in the country. Provinces have started to rebel against Islamabad, trying to make their voices heard. Subnational groups within these provinces have also understood their

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role in the country. Accommodation of these challenges in the political process remains to be a matter of concern. Unlike other countries, Pakistan has experienced constitutional breakdowns and the emergence of multiple constitutions, indicating that the country has undergone political instability. It seems that the burden of both Islam and diversity is difficult to manage. Provincial inequality has always been massive in the country since the beginning. The dominance of Punjab and the negligence of Balochistan continue even today. Most of the Pakistani provincial boundaries were not redrawn according to the need of the day. India, meanwhile, has seen more states emerging as a result of establishing better governance. As a result of provincial inequality, the accommodation of national and subnational groups remains a big problem in the country. Despite Punjab dominating in Pakistan, the Southern half of the province has been less developed compared to the north, which has the influence of big cities like Lahore, Gujranwala and Rawalpindi. The proposal for dividing Punjab to form Saraikistan province has been a significant development in reducing the overshadowing power of Punjab in national politics. The creation of such a province with the majority of Saraiki speakers continues to remain on paper. Representation of all non-­ Punjabi minorities in national politics and administration remains to be a massive challenge for the ruling regime in Islamabad. Pakistan being an Islamic Republic, the adoption of cooperative federalism can protect and nurture the religious minorities in the country. When the country underwent Islamisation under military regimes, religious minorities had to face the brunt of proving their allegiance to the Islamic Republic. Before the breakup of Pakistan in 1971, East Pakistan had a quarter of non-­ Muslims, while West Pakistan had less than five per cent. After the formation of Bangladesh, the concessions given to religious minorities gradually reduced. Despite the constitution of Pakistan providing fundamental rights and ensuring non-­discrimination, in practice, the problems of minorities still have not been addressed. Most Hindu and Christian minorities reside in the states of Sindh and Punjab. Sikhs are present mainly in and around the city of Lahore. Article 51(2A) of the federal constitution has ensured reserved seats for non-­Muslims and women despite the National Assembly majority being non-­inclusive of these seats. A similar policy of reservation has also been implemented at the Provincial level. Pakistan still follows harsh blasphemy laws, which have been used to repress minorities. Terrorist groups like Tehreek e Taliban Pakistan (TTP) and Haqqani Network continue to operate in sparsely populated regions of FATA. The Pakistan army responds to terrorist activities with an iron fist without addressing the ethnic issues, which is the root cause of the problem. Administrative and policy failures contribute to the radicalisation of society, and proper implementation of cooperative federalism can ensure representation for marginalised groups.

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The Construction of Gwadar port as part of the China–Pakistan Economic Corridor (CPEC) has been a ground-­breaking development in the Balochistan province. This port can potentially benefit Pakistan as an international hub for trade and commerce. Job opportunities and economic activity can benefit the province immensely. Pakistan’s federal government views the port as a strategic asset for the country and does not want to give space for Balochistan to have more control and benefit from the same. The Pakistani federal government has been conceding to the demands of the Chinese government with regard to the construction of the port which enraged protests in Gwadar (Shah, 2022). People in Gwadar protested against the provincial government seeking better living conditions and getting more benefits from the construction. In response, the federal government has deployed more security forces to protect the port premises. Most people in Balochistan do not wish to secede from Pakistan. Only thirty seven per cent of the population supports full independence (Abbasi, 2012). But then, two-­thirds agree that they need more provincial autonomy. One beneficial factor for Pakistan has been that the Balochistan liberation movement, even today, remains to be divided, enabling easy crackdown from the top. The federal government can reduce the support for the secessionist movement from the general public by adopting welfare policy measures. The government in Islamabad has been looking at the Balochistan issue from a mere security perspective. An inclusive policy outlook taking into consideration the local and regional needs would go a long way in solving the problem. An ideal approach to address the dilemma of ethnic conflict would involve the structural reform of Pakistan’s federal system, including radical changes like redrawing political maps, empowering local governments and enhancing transparency in the governance system. Beyond strengthening the union, cooperative federalism is also essential in the smooth implementation of social welfare measures, which is one of the most important functions of a welfare state. Pakistan cannot call itself a welfare state, and the implementation of the same still remains an unanswered question. An efficient bureaucracy and state machinery are required to deliver resources from top to bottom. Without cooperative federalism, it is hard for provinces to negotiate with the union and for local municipalities to bargain with the provinces. Analysing Cooperative Federalism in Pakistan in Light of the COVID-19 Pandemic and Recent Floods

Two recent instances which call attention to the need for cooperative ­federalism in Pakistan are the COVID-­1 9 pandemic and the devastating floods in 2022. The coordination between federal and provincial governments was crucial in effectively addressing the issues. The fault lines in the

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administration in a country surface during crisis periods, and the coordination between union and state governments needs to be examined in order to understand the functioning of cooperative federalism in Pakistan. In tackling the COVID-­19 pandemic, it was not only the federal government which was playing an important role but also the provincial and local governments. This highlights the need to equip provincial and local governments with financial, logistical and other forms of support to perform their duties (Mirza, 2020). Provincial governments play an important role in containing diseases locally. An efficient bureaucracy and law-­and-­order machinery is needed to implement the system of lockdowns. Pakistan was lauded by the WHO for its initial efforts in tackling the pandemic. Implementing lockdowns also needs coordination between the provinces and between the provinces and the federal government. Both provincial and federal governments were competent in the fight against the pandemic. The quarantine arranged near the borders and airports indicated superior planning at the local level. Balochistan was the first province which started preparations to tackle the pandemic in the country (Junaidi & Nagri, 2020). Gilgit Baltistan, which is directly under the control of the federal government, had closed its border with China. Lockdown was the next immediate step undertaken by both federal and provincial governments, with Sindh as the first province to initiate a lockdown followed by a nationwide lockdown (Raza, 2020). Prime Minister Imran Khan in June called for a smart lockdown in his TV address to the country, which imposed lockdown only in hotspots and received appreciation globally for balancing lives and livelihood (Tribune, 2020). From a situation of limited testing capacity, Pakistan was able to enhance its testing capacity with foreign help. Advisories were released in multiple local languages to reach the maximum number of people (Akhtar et al., 2021). Despite differences on multiple levels, the country was virtually united at this point. The fight against the pandemic in 2020 and 2021 is seen as a success story, with the government and various civil society organisations functioning proactively. Despite the active fight against the disease, the same proactive behaviour is yet to be achieved in vaccination. One can observe that the full vaccination has only reached half the population. Pakistan is a country known for vaccine hesitancy and is still unable to eradicate polio (Tharwani et al., 2022). Seven vaccines are approved in the country, and people can choose the vaccine of their choice. Considering the sensitivities regarding vaccinations in the country, both federal and provincial governments need to go the extra mile to ensure that people are sensitised on the importance of vaccination. Religion and scepticism of Western products are significant roadblocks which impede the ability to convince people of the importance of immunisation against diseases. This issue does not restrict to COVID-­19, but can be a potential problem in the future, where epidemics or pandemics worse than COVID-­19 can create more

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problems in society. Efficient coordination between the federal and provincial governments will go a long way in addressing the issue, making cooperative federalism significant in this context. The monsoon rains in the year 2022 had a devastating impact on Pakistan. The deaths and damage caused have exposed the lack of cooperative federalism in the country. This poses as an important lesson on how Pakistan needs to go miles to reform the system. The Provinces of Balochistan and Sindh were the most affected (Ahmed, 2022a). The federal government was not active as needed in mitigating climate change and making sure that such extreme weather do not impact the population. Pakistan was never prepared for such a disaster, and all levels of the government are equally responsible for the devastating impact. Lack of proper institutional framework, lack of resources, and a weak local government have contributed to such a catastrophe. Getting people’s lives back to normal will be a challenge for the government since many small-­and medium-­ scale industries were affected. Cash-­strapped Pakistan’s economy has indeed hurt the way in which it had fought the floods. The country cannot rebuild itself without any external help, and a lot of developed countries and international organisations have come in support of aiding Pakistan in getting out of the disaster and helping in reconstruction. After the floods, millions of people were displaced and prone to waterborne diseases, showing the vulnerability of people who were supposed to be taken care of by the provincial government as healthcare comes under the provincial list. The issue of inflation and poverty also points to the lack of effective cooperative federalism at the time of extraordinary crisis (World Bank, 2022). With Pakistan looking for an IMF bailout, increasing austerity measures can hurt Pakistan’s public spending, which should be aimed at economic reconstruction post-­floods. As a top producer and exporter of food grains, Pakistan’s food security is at stake (Ahmed, 2022b). Pakistan ranks 99 on the Global Hunger Index, highlighting the defunct public distribution system in the country. The federal government’s lack of concern for possible natural disasters is a concern albeit Pakistan’s geography and vulnerability to climate change. Effective policy measures are required to bring the country back on track after the catastrophic effects caused by the COVID-­19 pandemic and the floods. Separating long-­term and short-­term objectives and working accordingly is the way ahead. The local governments can focus on rehabilitation, reconstruction, resilience and development, while the federal government can look at holistic solutions to the problems. Reclaiming the country’s international image, attracting tourists, and, most importantly, framing a strong climate change policy for the country would be the important tasks for the federal government. Handling both COVID-­19 and the floods brings to the forefront the strengths and weaknesses in the federal–provincial relations.

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Implementation of cooperative federalism will be helpful in overcoming administrative challenges and can ensure that the benefits of the government’s policies reach the grassroot level. Conclusion

Pakistan, since its independence, has made tremendous progress in terms of decentralisation and federalisation of the country. From the system of elite-­ controlled nation-­building in the 1950s to the most recent constitutional amendments, Pakistan has come a long way. Unlike in the past, the military’s role in the country’s politics has gone down steeply, which is the best opportunity for the system to democratise and give more autonomy to civil society. The recent instances of natural disasters and the pandemic have given more reason to establish a cooperative federalism model. Pakistan has seen massive federalisation, and provinces have been empowered to lead the charge in policymaking and good governance. Efforts for effective decentralisation must be taken as both Azad Kashmir and Northern Areas are still ruled directly from Islamabad. Provincial power share has changed a lot, and Punjab’s predominance is reducing as other provinces are receiving more attention. Despite that, more must be done on the economic front, an arena which is still under Punjabi monopoly. As per the case studies discussed, the fight against the pandemic was successful, while the management of disastrous floods was a failure. Cooperative federalism will have to be used as an effective mechanism to solve administrative issues, which will ensure that a welfare state is established. Resolving the ethnic conflicts is a midway challenge showing slow progress, yet a lot of dissatisfied communities are still waiting for hope. Quelling the ethnic divide is what is necessary, and cooperative federalism is the tool to be used in Khyber-­Pakhtunkhwa, Balochistan and Kashmir in this regard. The proper functioning of cooperative federalism helps in ensuring stability in the country and will avoid circumstances of secessions like in 1971 when the country got divided into two. Cooperative federalism will have to be enforced through democratic, constitutional and political reforms, which will mean including stakeholders, mainly political parties, civil society and the people, into confidence. Bibliography Abbasi, A. (2012, August, 13). Baloch Favour Independence: UK Survey. The News. Adeney, K. (2007). Federal (In)Stability in Pakistan. In: Federalism and Ethnic Conflict Regulation in India and Pakistan. New York: Palgrave Macmillan. https:// doi.org/10.1057/9780230601949_7

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INDEX

Pages in italics refer to figures and pages in bold refer to tables. Aam Aadmi Party 78, 86 Abeyrathne, U. 8 Act East Policy 131 advocates of cooperative federalism: administrator lobbyists 39; citizen lawsuits 40; Congressional oversight 41; interest-group lobbyists 40; litigators 40; nongovernmental organizations 38–39; public sector union lobbyists 40 Affordable Care Act 42 Alexandrowicx, C. H. 62 Ali Khan, J. 234 Ali Khan, L. 234 Althusius, J. 14, 22 Ambedkar, B. R. 3, 61, 68, 70, 88, 91, 104–105, 129 Americans with Disabilities Act 40 Anderson, P. 182 Appleby, P. H. 63 AP State Reorganisation Act 114 Aristotle 15 Austin, G. 64 Austria, COVID-19 crisis: assessment of cooperation 148–150; communication and coordination channels 147–148; cooperative federalism 153–154; (socio-) economic consequences 154; legal framework 146–147; poor

preparation and insufficient legal basis 150; traffic light system 152–153; weaknesses in governance 150–151 Avbelj, M. 21 Ayog, N. 97 Ayyar, A. K. 67 Azad, M. A. K. 64 Bahujan Samaj Party 86 Baijal, A. 78 Balagopal, K. N. 76 Balbi, A. 17, 19 Balochistan Liberation Movement 238 Bandaranayake, S. W. D. R. 197 Banerjee, M. 74, 126, 136 Beck, H. 18 Bedi, K. 77 Bellamy, R. 14, 21 Benz, A. 51 Bharatiya Janata Party (BJP) 65, 86, 109 Bhusal, T. 8–9 BJP Parliamentary Party 111 Bombay High Court 73 Bommai, S. R. 88 border states and foreign policy 127–128 British Colonial Ethnic Policy 197 British Conservative Party 165 Bryce, J. 19

Index  247

Buchanan, J. 30–31 Burgess, M. 4, 17, 19, 21, 46 Business v. Sebelius 36 Bussjäger, P. 7 Castiglione, D. 14 Centre for the Panchayat Raj Institutions Act 91 Chennatuserry, J. C. 6 Choudry, S. 49 Chryssochoou, D. N. 4, 53 Civil Rights Act 40 civil society and cooperative federalism in India: Civil Society Development 98–100; landscape and complexities 85–98; overview 82–84; statement of the problem 84–85 civil society development: blackmailing potential 100; fourth arm of democracy 98; parliamentary democracy 100; participant culture 99; rational choice approach 98; vote bank culture 98, 100 Clean Water Act 35, 43 Clinton, H. 122 Cohen, C. 16 Communist Party 83, 89, 199 Congress Party 69, 76, 121 Constitutional Court 20, 50, 181–182 cooperative federalism: Austria 153–154; conceptual issues 3–4; Europe 6–8; Germany 157–169; multinational country 228–241; Nepal 211–225; overview 1–3; Pakistan 229–233; pragmatic and piecemeal responses 1; in South Asia 8–9; United States 31–33 cooperative federalism India 4–6 COVID-19 crisis, Austria: assessment of cooperation 148–150; communication and coordination channels 147–148; cooperative federalism 153–154; (socio-)economic consequences 154; legal framework 146–147; poor preparation and insufficient legal basis 150; traffic light system 152–153; weaknesses in governance 150–151 COVID-19-Measures Act 150–151 COVID-19 pandemic 7, 92, 94, 112, 115, 129, 238–240 Crisis Security Act 154 cross-border movement 128

Dahl, R. A. 89 Dar, S. K. 64 Deeg, R. 164–165 Deutsch, A. 39 Dewey, J. 61 Dhankar, J. 74 Dharmalingum, V. 199 Dicey, A. 50, 61 Disaster Management Act 115 District Councils Act 91 Doukellis, P. 17 Dravida Munnetra Kazhagam (DMK) 63, 122, 124 Duchacek, I. 175, 180 Economic Stimulus Act 154 Eisenhower, D. D. 43 Elazar, D. J. 18, 83, 96, 175 Eleftheriadis, P. 20 Eller, M. 7 emerging trends, Indian federalism: administrative coordination 112; constitutional framework 105; global discourse 106; Indian federalism (1952–2022) 107–110; Intergovernmental Cooperation 115; inter-governmental cooperation 104; political competition 113–114; recent trends 110–112 Epidemic Act 150 Epidemic Diseases Act 115 Ersson, S. 54 European Court of Human Rights 50, 182 European ‘syspondia’: commonwealth 19; Concordance System 20; confederation 18; constitutional pluralism 22; epilogue 23; federation 17; horizons 13–16; intergovernmentalism 21; international union 19; national populism 14; organized synarchy 15–16; overview 13–14; plausible claims 22; symbiotic consociation 16; sympoliteia 18; theorizing intellectualizes perceptions 13; thesis 16–23 Fadnavis, D. 72–74 Fair Housing Amendments Act 40 Federal Administrative Procedure Act 38 Federal Aid Road Act 39 Federal Constitutional Court 167

248  Index

Federal court 38 federalism and consociational power-sharing: autonomy 180–182; in Europe 173–176; flexible process 176; grand coalitions 177–178; historic evolution 176; overview 171–173; proportional representation 179–180; in search of 182–183; veto rights 178–179 federalism and democracy: contrasting effects 50–52; forms of 47–50, 49; overview 46–47; reinforcing effects 52–54 Federal Party 198–199 Figueira, T. 18 Fischer, J. 6 Forrest, G. W. 18 Forsyth, M. 18–19 Frankfurter, F. 61 Free Paktun movement 235 Freiburghaus, R. 178 Friedman, M. 164 Friedrich, C. 174 Funke, P. 18 Gadkari, N. 92 Gandhi, I. 69, 107–108 Gandhi, M. 104 Garcia v. San Antonio Metropolitan Transit Authority 40 Gaus, J. M. 61 Gide, C. 3 Glasgow, G. 16 Gopa Kumar, G. 5 Government of India Act 64, 105, 230 Government of National Capital Territory of Delhi (GNCTD) Act 78 Governors and Lt. Governors: behaviour of 72–78; commissions and courts 70–72; constitutional provisions 67–70; Provincial Constitution Committee 67 Grimm, D. 15 Grodzins, M. 41 Groom, A. J. R. 13, 19 Gupta, A. 134 Hamilton, A. 29, 33 Harper, S. 163 Harvie, C. 162 Hazare, A. 100 He, B. 49 Hechter, M. 160

High Court 78 Horowitz, D. 48 Hueglin, T. 4, 46 India: Article 3 64–67; Civil Society Development 98–100; classical federal system 83; confederated systems 84; Congress Working Committee 64; debate on federalism 82; federating units 61–80; Governors and Lt. Governors 67–78; landscape and complexities 85–98; sharing and shaping powers 82–83; statement of the problem 84–85 India-Bangladesh land border agreement 136 India-China border tensions 135–136 Indian federalism (1952–2022) 107–110 Indian foreign policy: border states and foreign policy 127–128; competitivecooperative federalism 129; conduct of 120; constituent diplomacy 121; economic liberalization and impact 131–132; geopolitics and federal foreign policy 133–134; globalization, liberalization and economic dynamics 122–123; India-China border tensions 135–136; India-Pakistan issues 134–135; India-Sri Lanka relations 123–124; India–US nuclear deal 123; Land Boundary Agreement 136; under Narendra Modi regime 129–131; under NDA 128–137; NDA government led by BJP 128–129; overview 120–121; Sir Creek issue 126–127; Taliban regime 137; Tamil Nadu, West Bengal, Kerala and Gujarat 132–133; Teesta River issue 126; treatment of Indians 125; under UPA 121–128; UPA government led by the Congress Party 121–122 India-Pakistan issues 134–135 India-Sri Lanka relations 123–124 India-US nuclear deal 123 International Court of Justice 135 Iyer, L. 75 Jammu and Kashmir People Democratic Party 86 Jammu and Kashmir Reorganisation Act 134 Janata Party 89, 107–108

Index  249

Jayawardene, J. R. 200 Jensen, S. R. 18 Johnson, L. B. 39 Joseph, S. V. 9 Joshi, K. 69 Jung, N. 78 Karlekar, L. 6 Keating, M. 161, 165 Keil, S. 7–8, 174, 182–183 Kejriwal, A. 78 Khan, A. M. 75–76, 93 Khan, I. 239 Kincaid, J. 4, 83, 121 Kinnas, J. 19 Kirchhof, P. 20 Kohler, M. 177 Koshyari, B. S. 72–73 Kössler, K. 53 Kothari, R. 86, 107–108 Kouma, K. M. 19–20 Krasner, S. D. 16 Kropp, S. 174 Kumarnathunga, C. 206 Lal, R. 69 Lambert, P. 3 landscape and complexities of Indian federalism: BIMARU region 97; co-operative federalism 88; EduTechindustry 94; electoral democracy 98; infrastructural and economic problems 96; judicial activism 98; lifeboat strategy 87; majoritarianism 90; market-driven federalism 94; market friendly policy 95; multiculturalism 90; multicultural policies 86; one-party dominance 86; parliamentary–federal issues 90; political activism 85; political misuse of Article 356 88; public criticism 91; quasi-federal political system 89; rights-based policies 95; socialistic pattern of society model 94; ticket-splitting voting patterns 87 Lane, J. 54 Lecours, A. 181 Leibfried, S. 19 Leonardy, U. 21 Lijphart, A. 48, 174–175, 177 Linz, J. J. 194 Local Level Act 219

Local Self-Governance Act 220 Lok Janshakti Party 86 Look East Policy 131 Lütz, S. 164 Mahmood, A. H. 136 Malik, S. P. 76 McCulloch, A. 175, 183 Menon, S. 126 Mitchell, J. T. W. 3 Modi, N. 65–66, 69, 73–76, 95, 110, 115, 127, 130–134 Monroe, J. 30 Mukherjee, P. 76 Musharaff, P. 232 Nagarapalika Act 91 Nairn, T. 160 Narasimha Rao, P. V. 91, 131 Narayan, J. 100 Narayansamy, V. 77 Narendra Modi regime 129–131; Indian Ocean Outreach 131; Look East Policy 131; Neighbourhood First Policy of India 131 National Congress Party (NCP) 72 National Defense Education Act 43 National Education Policy 90, 112 National Environmental Policy Act 43 National Interstate and Defense Highways Act 43 Nationalist Congress Party 86 National League of Cities v. Usery 40 National Minimum Drinking Age Act 43 Nehru, J. 64, 69, 104, 107 Nepal: cooperative federalism 212–213; federalist constitution 211; institutional approach 213–214; intergovernmental relations approach 215–216; multidimensionality 217, 217; policy implementation 220–222; policymaking 218–220; service delivery 222–224 New Economic Policy 94 Nicolaidis, K. 14, 21 Nirbhaya movement 100 Nixon, R. M. 43 Noorani, A. G. 71 Obama, B. 37, 42 Obeyesekere, G. 191 Official Language Act 198

250  Index

Olberding, J. C. 161 O’Leary, B. 177 Opposition Party 70, 79 Pakistan: China–Pakistan Economic Corridor (CPEC) 238; cooperative federalism 229–233; COVID-19 pandemic and floods 238–241; diverse ethnic composition 229; handful of parties 236; ideal approach 238; Islamic Republic 237; multinational country 228, 233–236; provincial inequality 237; terrorist groups 237 Pakistan People’s Party 229, 236 Palermo, F. 53 Pant, H. 132 Parthasarathy, G. 127 Patel, S. 64, 104 Pathak, R. 115 Pavlopoulos, P. 17 Pawar, S. 73 Petersohn, B. 177 political economy: cooperative federalism 157–160; economic regionalism 161–164; endogenous responses 164–165; federalism 166; functional overlapping competing jurisdictions 161; functional regionalism 162; German federalism 166–169; globalization 164–165; regional economies 165; territorial equivalence 160–161 Polk, J. K. 30 Popelier, P. 4, 178 Prabhu, J. R. 9 Prasad, B. 67 Prasad, R. 64 Preub, U. K. 14, 16 Provincial Planning Commission (PPC) 216 Puchala, D. J. 20 Puetter, U. 21 Punchhi, M. M. 88 Quebecois National Party (QNP) 85 Rao, N. 120 Ratan Soli Luth v. State of Maharashtra 73 Rau, B. N. 61, 64 Ravi, N. 69 Ravindran, G. 75

Reagan, R. 43 Revolutionary Socialist Party 87 Right to Information Act 95 Riker, W. 4 Rodden, J. 51 Roe v. Wade 42 Rosamond, B. 13 Roy, R. 98 Saksena, R. 115 Samajwadi Party 86 Sarkaria, R. S. 88 Sbragia, A. M. 15 Schmitt-Egner, P. 162 Schuman, R. 6 Shah, J. 66, 73–74 Shastri, S. 5–6 Shinde, E. 74 Shiv Sena 72 Singh, K. 5–6 Singh, M. 123, 126–127 Singh, M. P. 85 Singh, R. D. 69 Singh, V. P. 122 Single European Act 7 Sir Creek issue 126–127 Sirisena, M. 206 Smiley, R. 1 social and political facilitators: bipartisan ratchets 43; moral approbation 42; partisan congruence 43; professional norms 41–42; public support 42; socialization 42; territorially dispersed diversity 42 Social Democratic Party 152 Socialist Party 171 Social Security Act 31 Sri Lanka: decentralized governance 201; Donoughmore Commission 197; executive absolutism 199–201, 205–206; federal discourse 196–199; Government Responses 201; minority sense 205–206; overview 191–193; post-independent history 194; power-sharing arrangements 196; programmed to fail 202–205; Provincial Council System 201–202; Soulbury Commission 197; State Nations thesis 193–196; 13th Amendment and federacy features 202; two republican constitutions 199–201 Srinivas, M. N. 100

Index  251

Stalin, M. K. 75 state and local administrative cooperation: advocates of 38–41; compliance deadlines 37; federal-aid carrots and sticks 35–36; federal forbearance 37; federal government 33–35; fiscal illusions of deficit spending 36; minimum nationalstandards schemes 36; social and political facilitators 41–43; statutory and regulatory penalties 38; waivers of federal law 36–37 State Nation model 193 Stepan, A. 194 Sturm, R. 7 Supreme Court 5, 61, 66, 70–71, 75–76, 78, 98, 115, 202, 215, 234 Suri, K. C. 91 Swaraj, S. 131, 136 Swenden, W. 46 Swiss People’s Party 177 Tambiah, S. J. 191 Tamil Military Movement 201 Taylor, P. 15–16, 20, 23 Teesta River issue 126 Telugu Desam Party 86 Thackeray, U. 72–74 Tiebout, C. M. 163 Tillin, L. 85 Tilly, C. 192 Total Revolution Movement 100 Trump, D. 42 Tummala, K. K. 5

United States: cooperative federalism 31–33; historical background 29–31; overview 28–29; state and local government administrative cooperation see state and local administrative cooperation University Act 75–76 U. S. Fair Labor Standards Act 40 U. S. REAL ID Act 37 U. S. Supreme Court 28–29, 32, 34–37, 42, 62 Vatter, A. 178 Venkatasubbaiah, P. 69 Vijayan, P. 75 Vinod, M. J. 6 Walakuluge, S. 8 Walbank, F. W. 18 Walker, N. 22 Watts, R. 17, 47, 173 Weale, A. 19 Webb, B. 3 Weiler, J. H. H. 22 Wheare, K. 62–63, 128 Wibbels, E. 51 Williams, C. H. 165 Wilson, A. J. 200 Yadav, D. 75 Yadav, Y. 194 YSR Congress Party 86 Zardari, A. 232