5 Hindu nationalists and federal structures in an era of regionalism more

05_coalition296 16/2/05 12:35 pm Page 97 5 Hindu nationalists and federal structures in an era of regionalism Katharine Adeney Introduction Constitution design is controversial, especially designing structures to accommodate ‘ethnic’ identities. Constitutional recognition (or nonrecognition) of ‘ethnic’ identities is a very public form of recognition, and debates concerning this issue are always controversial (Adeney 2002: 8–9). Amending a constitution to recognise new identities or to change their public recognition is even more fraught. This is because recognition is linked to access over power and resources. Once amendments are accepted, they become entrenched in their own right. This is why it was so contentious when the BJP manifesto of 1998 and the NDA manifesto of 1999 proposed to create a Constitutional Commission. The INC and the two main Communist Parties opposed it, fearing that the BJP would use it to change basic features of the constitution (Sachar 2000). However, this concern was overstated – Article 368 of the constitution requires that such a ‘[b]ill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting’. In addition, many amendments, most of which concern the relations of power between the Union and the states, require ratification by not less than half of the states by resolutions in their legislatures. Given the diversity of the popular bases of the political parties within the NDA, agreement on any controversial changes would have been highly unlikely. But this was not the only reason that the opposition was concerned. As Christophe Jaffrelot (1996) has discussed, the discourse of the State is as important as laws and constitutions. According to Bogdanor (1988: 5), ‘[a] working constitution in a democracy implies reference to certain norms and standards which lie beyond and outside the document itself’. The concern was that the purpose of constituting the Commission was to introduce contentious issues into national debate. PR OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 98 98 Katharine Adeney 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Hindu nationalism and federal forms of government At the outset it is important to note that ‘federal forms of government’ can encompass many different constitutional forms. There is no necessary relationship between the level of centralisation within a constitution and whether that country is a federation or not. Federations are defined by the division of sovereignty to, at least, two territorially defined levels of government. They are not defined by the extent of powers that are allocated constitutionally to the lower territorial tier of government; although federal forms of government are usually more decentralised than their unitary counterparts. Similarly, there is no necessary relationship between a federal system of government and the protection of minority rights (Adeney 2002: 11–12). If a federation is organised around units defined by ethnicity then that ethnic group has some protection within that unit from the centre. But even if the federation is organised on ‘ethnic’ criteria, a territorially concentrated group can be outvoted at the centre by a coalition of other ‘ethnic’ groups or a dominant ‘ethnic’ group. Potentially even less secure are minorities within states (e.g., Urdu speakers in Uttar Pradesh or Muslims within Gujarat). The Indian federation does possess mechanisms to protect these minority communities, although they have not always been effective. Hindu nationalism has historically had a mixed attitude to federal forms of government. This makes it difficult to determine whether the BJP was constrained by its coalition partners. One of the big unanswered questions when the BJP-led coalition came to power in 1998 – and again in 1999 – was whether the BJP would remain true to its Hindu nationalist agenda. In assessing the BJP’s operation of the federal provisions it is important to recognise that centre–state relations cannot only be understood through constitutional provisions. The day-to-day operation of these provisions is vitally important. In addition, constitutional structures constrain as well as enable governments and the individuals that comprise them, but the extent to which agency is possible is hugely significant (Adeney and Wyatt 2004: 4–6). Zavos defines Hindu nationalism as an ‘ideology seeking to imagine or construct a community on the basis of a common culture’ (2000: 5). But this says nothing about specific forms of governmental structures. Jaffrelot also makes the point that the RSS ‘did not regard State power as the most important object of conquest – they preferred to work at the grassroots level with a long-term perspective’ (2000: 353). Indeed, Hindu nationalism, in Chetan Bhatt’s words retained an ambiguous relationship to the Hindu State or Hindu Government . . . the latter represented territorially bounded sovereignty political and administrative structures based on permanent Hindu majority rule. (2001: 42) PR OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 99 Hindu nationalism and federalism 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 99 Hindu nationalist thought favours a strong centre; being committed to the unity of the Hindu nation; but is simultaneously committed to the decentralisation of authority to panchayats. It has sought to create a strong state and does not see decentralisation at the local level as incompatible with this. This is because, as Hansen argues, the BJP’s commitment to subdividing the Indian States into smaller units and regions . . . is . . . informed by a desire to limit the considerable power of the States, the regional sentiments, and vernacular public arenas (and) . . . strengthen . . . the Union government. (1999: 221) Hindu nationalist thought views federal forms of government, especially those that design the provincial units around ‘ethnic criteria’, as destabilising strong and effective government, and potentially undermining the territorial unity of the country. It is for this reason that they advocated the creation of 100 janapadas (administrative divisions grouping together several districts). These divisions were deliberately intended to divide ‘linguistic zones and ensure . . . that they did not become mini-nations’ (Jaffrelot 1996: 130). They were also intended to build a strong state. Indeed, the Jana Sangh organised its internal organisation along these lines (in contrast to the INC which had organised its internal organisation along linguistic boundaries).1 Hindu nationalists were therefore committed to ‘national’ federalism rather than ‘multinational’ federalism (O’Leary 2003: 6). Federalism can be convened on administrative rather than cultural lines. An administrative, rather than an ethnic rationale, must be used as the primary explanation behind the creation of the three new states in 2000,2 as well as a perception of the perceived electoral advantages for the BJP. It is therefore hard to draw any definitive links between Hindu nationalism and particular forms of federal design. Hindu nationalism has differed over time and between Hindu nationalists. The only way forward is to point to particular attitudes at moments in time. Despite the general commitment to a national rather than multinational federation, the Hindu Mahasabha did not oppose the linguistic reorganisation of states in the 1950s. To wit, the All Indian Hindu Mahasabha asserted that it endorsed ‘the demand for the formation of States on a linguistic basis and the rectification of boundaries of the existing States wherever necessary’ (Hindu Mahasabha 1954). Was this an early example of the compromises Hindu nationalists were prepared to make in order to secure wider support? Yet this view was qualified in the same statement. The Mahasabha has always believed that Hindustan is one homogeneous country and regards States as administrative units, though PR OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 100 100 Katharine Adeney the Mahasabha stands for decentralisation in certain spheres of national development, it cannot regard different States as different nationalities. (Hindu Mahasabha 1954) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 In addition, the Hindu Mahasabha argued that the State Reorganisation Commission’s (SRC) recommendations needed to be modified in relation to religious communities. For instance it claimed that ‘[t]he Sikhs should gladly share with other Punjabi speaking people in the development of their future destiny as one indivisible linguistic unit and as an essential limb of the Indian nation (quoted in The Hindu 1955a)! The Jana Sangh adopted a similar view in regard to language and religion. The Bharatiya Jan Sangh stands for a unitary form of Government with decentralisation of powers to the lowest levels. Till that is achieved we are in accord with the principles formulated by the Commission for the Reorganisation of States. (quoted in The Hindu 1955b) This was partially because opposing linguistic reorganisation would have been unpopular, and as Jaffrelot notes, the Jana Sangh did not hesitate to exploit linguistic feelings (1996: 130). The limits on the recognition of linguistic and religious differences was not converted into an ‘absolute faith’ (Graham 1990: 99). Despite this, in common with the Mahasabha, it retained concerns about the process. Graham opined that: In the debates about [linguistic reorganisation] the Jana Sangh proposed the absorption of small units into larger territories within a federal framework but it also reaffirmed its faith in a unitary system under which India would have had a single cabinet and a single legislature, based on a system of about one hundred regional assemblies.3 (1990: 99) An area where the Jana Sangh were less willing to compromise, partially because of religion, was in the Punjab after independence. The Jana Sangh opposed the division of the Punjab, a stance that cost it many votes (Jaffrelot 1996: 131). It did so partially for strategic reasons – Punjab being a border state with Pakistan. But it also opposed the division because it viewed the Sikhs as a sect of Hinduism. However, it conceded that people in the Punjab should have the choice between using Punjabi or Hindi and between the two scripts – Devanagari and Gurumukhi.4 Hindu nationalist parties have therefore reached compromises with, what they have regarded as, ‘anti-national’ forces in the past. In its 1967 manifesto, the Jana Sangh conceded ‘that the public service entry examinations could be taken in the regional languages’ (Jaffrelot 1996: 226). PR OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 101 Hindu nationalism and federalism 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 101 a) Appointing a Commission to review the Constitution of India; b) Commitment to the devolution of more financial and administrative powers and functions to the states including the Sarkaria provisions relating to Panchayats; c) Commitment to a Backward Area Commission to identify least developed areas and recommend comprehensive measures for their development; d) Committee to study the feasibility of all 19 languages in Schedule Eight of the constitution as official languagesa; e) Examine problems of border states; f) Take measures for ensuring a fixed term (five years) for all elected bodies including legislatures and replace no confidence motions with German system of Constructive vote of no-confidence; g) Introduce necessary electoral reforms to deal with defections and the criminalisation of politics; h) Introduce a revitalised northeastern Council, ensure territorial integrity of the states of the northeast; i) Set up a National Judicial Commission to recommend judicial appointments in High Courts and the Supreme Court and draw up a code of ethics for the judiciary; j) Provide eligibility criteria that only naturally born Indian citizens hold the high offices of state-legislative, executive and judicial; k) Establish a National Register of citizens and a multi-purpose identity card for all citizens; l) Undertake all necessary legislative and administrative measures to ensure the right of franchise of the Armed Forces through proxy voting and or any other method. Source: Summarised from National Democratic Alliance (1999). Note a In 1999 there were only 18 languages in the Eighth Schedule. The nineteenth language mentioned is the official language of English – not counted as a ‘national’ language. PR OO F ON Table 5.1 Topics in the 1999 NDA manifesto relating to constitutional and legal reforms LY This makes it less surprising that they have recently entered into, and encouraged, a coalition with political parties that are regionally based, either espousing a regional agenda, or a caste agenda that is regionally defined. As Varshney and Sridharan analyse, the BJP cannot come to power at the Centre using its ‘natural’ constituency. To come to power at the centre required entering alliances with regionally based parties to expand the size of a future coalition (2001: 216). This pragmatic policy ensured that it was able to form governments in 1998 and 1999. It is significant that it has been willing to compromise on its agenda in order to do this; dropping controversial pronouncements from its manifesto. There were no major strains to centre–state relations during the NDA’s tenure in office (although to some extent this depends on what is defined as a ‘major strain’). However, tensions undeniably existed. Is the relative harmony because the BJP was constrained by its coalition partners? Partially. This pragmatic policy has ensured it was able to remain in power for 05_coalition296 16/2/05 12:35 pm Page 102 102 Katharine Adeney 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Table 5.2 Constitutional amendments under the NDA Amendment Seventy-Ninth Eightieth Eighty-First Bill number Eighty-Fourth Purpose Date passed Eighty-Second Eight-Third Eighty-Fourth Eighty-Fifth Eighty-Sixth Eighty-Seventh Eighty-Eighth Eighty-Ninth Ninetieth Ninety-First To extend the time period for the reservation of seats for SCs and STs for another 10 years. Eighty-Ninth Related to Tenth Finance Commission. Changing share and types of taxes states can receive. Ninetieth Changed constitution in response to Supreme Court judgement that reserved quota of jobs for SC/ST could not be ‘carried over’ so that the reservation would exceed 50 per cent in any one year. Eighty-Eight Supreme Court said it was not permissible to relax qualifying level for SC/ST. Constitution changed to make it permissible. Eighty-Sixth Amend Seventy-Third Amendment Act that made it mandatory to allocate SC seats in Panchayats. Arunachal Pradesh, with no SC population was exempted from this provision. Ninety-First Postpone re-adjustment of state’s seats in the Lok Sabha until 2026. Refix SC/ST seats according to 1991 census. Ninety-Second Amend Article 16 of the constitution to allow for seniority to play a role in SC/ST appointments. Ninety-Third ‘The state shall provide free and compulsory education to all children 6–14 years old and shall endeavour to provide early childhood care and education for all children until 6 years old and a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of 6 and 14 years.’ Ninety-Sixth Refix SC/ST seats according to 2001 census. Ninety-Fifth Allow centre to levy service tax and allow the states the centre to collect and appropriate this tax. Ninety-Fourth There shall be separate National Commissions for SCs and STs. Ninety-Ninth To keep intact the representation of the ST and non STs in Assam. Ninety-Seventh Insert into Article of Constitution • Total number of ministers, including the PM or the CM, ‘should not exceed 15 per cent of the total number of members’ of the House of the People or the Legislative Assembly of a state. • If disqualified from being member of the Legislative Assembly under 21 Jan. 2000 9 Jun. 2000 9 Jun. 2000 LY 8 Sept. 2000 ON 8 Sept. 2000 21 Feb. 2002 4 Jan. 2002 OO F PR 12 Dec. 2002 May 2003 May 2003 Aug. 2003 Aug. 2003 Dec. 2003 05_coalition296 16/2/05 12:35 pm Page 103 Hindu nationalism and federalism 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Table 5.2 Continued Amendment Bill number Purpose Paragraph Two of the Tenth Schedule (defection), also disqualified from being able minister until the term expires or they are re-elected. • Also disqualified from holding a remunerative political post until term expires or re-elected. • Paragraph Three of the Tenth Schedule to be omitted (that disqualification on ground of defection shall not apply in case of split). Provides for inclusion of Bodo, Dogri, Maithili and Santhali languages in the Eighth Schedule. 103 Date passed LY Ninety-Second One Hundred 24 Dec. 2003 Source: GoI (2000a–e, 2002a–c, 2003a–f). its full term in office, something few observers would have been willing to bet on.5 Yet, as demonstrated, Hindu nationalists’ attitudes to federal design and centre–state relations have been adaptive and accommodative in the past. The lack of a unified ‘federalism’ or a unified ‘Hindu nationalism’ goes a long way to explaining the pragmatism, even if this says nothing about a commitment to the rights of religious minorities. The manifesto commitments of the NDA were extensive in the area of constitutional and legal reforms, as can be seen in Table 5.1. Many, although not all, of the above commitments were put into effect – and were uncontroversial, or designed to prevent a change to the status quo. Under the NDA, fifteen Constitution Amendments Acts were enacted, one of which still requires ratification by half of the states before coming into effect. These amendments can be seen in Table 5.2. Not all were directly related to centre–state relations, some were unconnected and others were tangentially related such as the amendment to prevent the redistribution of seats between the states of the Union, albeit vitally important for centre–state harmony.6 Many amendments concerning reservations and qualifications for SCs and STs restored the status quo after Supreme Court judgements challenged elements of reservation policy. Many of the above amendments are not relevant to centre–state relations and as such are not discussed in this essay. In this chapter I am going to focus on the issue of state finances and changes in relation to the border states. In addition, there are important issues relating to centre–state relations that were not covered in the manifesto commitments, such as the use of Article 356. PR OO F ON 05_coalition296 16/2/05 12:35 pm Page 104 104 Katharine Adeney 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Finances As Rob Jenkins reminds us, ‘Fiscal federalism is, in many ways, the heart of the Center-State relationship, in India as in most other federal systems’ (2003a: 618). The Indian federation has historically been centrist in its financial provisions. In recent years, economic decentralisation has occurred as a result of economic liberalisation. However, these changes have meant that the states have generally experienced a decline in the level of fiscal transfers from the Centre. This is important because the states have controlled few sources of revenue, and the ones they did were not lucrative, and subject to immense variation. In addition, while economic liberalisation provided the states and the parties that controlled them with the ability to attract investment directly; this investment has not been spread evenly. At the same time, fiscal constraints have limited public investment creating greater interest in private investment. These changes are the result of global pressures and structural changes rather than being confined to the period of the NDA Government. Despite this, the decisions of the governing coalition in this area had the potential to influence fiscal federal relations and reveal much about the linkages between coalition politics and Hindu nationalism. The BJP now favours allocating ‘a fairer share of central revenues’ (quotation taken from 1996 BJP Manifesto quoted in Varshney and Sridharan 2001: 216), a necessary concession to expand its vote share. It has also embraced the economic liberalisation of the economy which has enabled the states to seek their own investment opportunities. This is in contrast to the Swadeshi ideals of the RSS – again demonstrating the pragmatism and compromises of the BJP. One of the significant changes made under the NDA was the Eightieth Constitutional Amendment of 2000 (GoI 2000b). This amendment changed the tax raising powers of both Union and states, so that the states would receive up to 29 per cent of the net proceeds of all Union taxes and duties. This Act required ‘all Central taxes and duties (except surcharges and certain sales taxes) to be shared between Centre and States’ (Chandrasekhar and Ghosh 2000, emphasis added by the authors). Before this amendment only selective taxes were shareable and vertical transfers had declined. This was a welcome change in the distribution of finances between the centre and the states. Yet these changes came with qualifications. First, the transfers were downscaled from the recommendations of the Tenth Finance Commission, which had recommended 29 per cent of the gross proceeds of the taxes be shared (EPW 2000a). Second, these changes were well under way in the Ministry of Finance before the NDA came to power.7 Finally, at the same time as Yashwant Sinha claimed this amendment proved that the NDA was operating in the spirit of ‘cooperative federalism’, he changed unilaterally the Terms of Reference (TOR) of the Eleventh Finance Commission to recommend that the grants to the PR OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 105 Hindu nationalism and federalism 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 8 105 states be conditional on their reduction of their fiscal deficit. The TOR not only encroached on states’ autonomy by making a former entitlement conditional, but it was introduced without consultation to the Inter-State Council (ISC). This was unwise from the point of view of amicable centre–state relations, given that a meeting of the ISC was scheduled for only three weeks time. The bypassing of the ISC gave the impression of the centre unilaterally implementing financial reforms. Many of the states vociferously objected to the underhand way in which this was done at the meeting of the ISC on 20 May 2003 (EPW 2000b). The report of the Eleventh Finance Commission was submitted to the President in June 2000, a few months later. It came under sustained attack by the states, including members of the NDA. The TDP, a vital supporting member of the NDA met with all the members of the Commission.9 The Eleventh Finance Commission had changed the weightages relating to population size, reducing them from 20 to 10 per cent. The Commission accorded a weightage of 7.5 per cent to fiscal discipline. These two changes have adversely affected Andhra Pradesh as has the reduction in the weightages of efficiency parameters, such as a state’s efforts in collecting taxes (reduced from 10 to 5 per cent) (Muralidharan 2000). Despite this, Naidu wielded his influence as a supporting member of the NDA to influence favourably the centre’s economic decisions affecting his state (Echeverri-Gent 2002: 48). All these trends are important because public investment has declined at the same time as other pressures have increased on states. Large differences have developed between the different states of the federation, not only in terms of per capita income but also with respect to economic, demographic and developmental growth levels. Although these challenges were not exclusively the result of NDA policies, the inter-state differences in growth, development and population growth are vitally important issues for centre–state relations. One final and recent change in relation to federal finance that deserves scrutiny is the Constitution (Ninety-Fifth Amendment) Bill 2003.10 This permitted Service Tax to be levied by the Union (which previously had done so by default through entry 97 on the Union List) but to be collected and appropriated by both the Union and the states. The Statement of Object and Reasons appended to the Bill states that: [t]he States have taken a unanimous decision to replace their existing sales tax system with the system of Value Added Tax (VAT) from the 1st April, 2003.11 In this context, with a view to widening their tax base, the States have suggested that they should be able [sic] to collect and appropriate tax on services. (GoI 2003f) PR OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 106 106 Katharine Adeney 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Border states The 1999 National Agenda for Governance included a promise to sort out the northeast of India. The northeastern states pose many challenges to the central government. Elsewhere, Manor (1996, 2001) has argued that the diversity of India has facilitated democracy and the stability of the country, but stresses that the extreme diversity in the North East is problematic for ethnic conflict regulation and the stability of the Indian state and democracy. It is hard to disagree. The SRC deliberately avoided reorganising the states in this area because of the extreme diversity (SRC 1955). Religion, tribe, language and dialect internally divide the states of this region. The border states have suffered a very high number of deaths. Definitive data are impossible to acquire, and figures vary widely, but the numbers of deaths are much higher in these states, even when compared to other infamous incidents of violence such as the communal riots after the demolition of the Babri Mosque or the carnage in Gujarat in 2002 (Adeney 2003: 224). This disparity is even greater when the differences in population sizes are taken into account. Therefore, accommodating these regions is an important challenge for the Indian federation. As said, the conflict is a political one. By many standards the northeastern states are not backward. Mizoram has the highest literacy rate in India while Nagaland, Tripura and Manipur are all above the national average. Their per capita incomes are, by Indian stand- PR OO F ON The statement added that as the ‘service sector accounted for 48.5 per cent of the country’s [GDP in 2000–01] . . . the proposed amendment would help in significant augmentation of revenues of the States’ (GoI 2003f). Although it has not yet been ratified by the requisite number of states, only the AIADMK voted against the bill in the Rajya Sabha (on the grounds that ‘the right to levy service tax should be with the States’) (Parsai 2003). This could have a significant impact on state revenue in the future as ‘(t)he services sector has almost been outside the tax net during the previous decade’ (EPW Research Foundation 2004: 1843) Therefore, in relation to federal finance, the states have secured more resources, even if the centre has at times acted without consultation. Whether this lack of consultation can be attributed to the individual in charge of the Finance Ministry at the time, or was related to the ideology of Hindu nationalism is difficult to say. But the change does mitigate the economic centrism of the centre, with the BJP acting pragmatically in this regard, as it has done so in relation to economic liberalisation more generally. However, this change will not address the disparities between the states, which remain the biggest threat to long-term and stable centre–state relations and state–state cooperation. But these disparities are not within the purview of any central government to solve easily, especially in an era of coalition politics. LY 05_coalition296 16/2/05 12:35 pm Page 107 Hindu nationalism and federalism 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 107 ards, very high (Das Gupta 1998: 187–8). The smaller states in the northeast ‘have a considerably higher per capita plan outlay allocation than the national average for all States’ (Das Gupta 1998: 211). In terms of budget transfers, ‘those that have done best are the delicate border States’ (Jeffrey 1994: 188). This is not to deny that these states feel isolated from India, and feel that they have not been integrated into the Union. Harish Khare argues that the BJP ‘has made a fetish of having introduced creativity in the Indian federal structure’. He elaborates that they have carried forward the dialogue process with the insurgents in Nagaland, worked out an agreement with the Bodos and established a Bodo Territorial Council, and agreed to sit across the table from the All Party Hurriyat Conference in Kashmir. (2004) The BJP continued with the reorganisation of the political structures of the northeast of the country – although it did not initiate this process. Despite the fact that it was continuing rather than initiating this process, it is significant that the BJP has constitutionally recognised ‘ethnic’ identities that ‘undermine’ the unity of the ‘Hindu nation’. Hindu nationalists had recognised these identities previously (e.g., the Jana Sangh conceding the legitimacy of regional languages being used for public service examinations), but this time it was actively pursuing it. That recognising identities can be divisive is illustrated by the zero-sum nature of many of the claims by groups of the northeast. One example of this is that extending the ceasefire agreement with the Nagas to areas outside Nagaland has concerned Manipuris. Advani stated that the NDA was committed to the integrity of the states of the northeast. However, [i]t has been a longstanding demand of the NSCN to merge all Nagadominated areas in the Northeast with Nagaland. This is why the chief ministers of the other States [were] wary of the extension of the ceasefire to their territories. (Singh, O. 2001b) Unsurprisingly, the CPI-ML Manifesto for the 2004 Lok Sabha elections argued that the BJP seeks to split the movements in the northeast in the interests of creating, disharmony and even [to] engineer inter-tribal clashes so that the[y] can fish in the troubled waters of the North-East and advance its sectarian agenda. The ceasefire accord with the Nagas created unprecedented unrest in Manipur, and the accord with the Bodos . . . has left the Assam hills simmering. (2004) PR OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 108 108 Katharine Adeney 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 The BJP’s perceived partisan support for the Naga cause had electoral consequences. For instance, the party suffered in the 2002 state assembly elections in Manipur because of its perceived support for a Greater Nagaland. The issue has continued to affect the BJP and in October 2003 Vajpayee had to publicly reiterate his rejection of a Greater Nagaland in the absence of a consensus being reached between the affected communities (The Hindu 2003f).12 In Assam, the issues were just as complex. In 2003, a tripartite Memorandum of Understanding was signed between the Bodo Liberation Tigers, the Assam Government and the Centre. It ‘envisage(d) the creation of Bodoland as an autonomous self-governing unit within Assam’ (Mody 2003). A Bodoland Territorial Council (BTC) of 46 members was created, replacing the existing, but ineffectual, Bodoland Autonomous Council. In the new BTC 40 seats were elected – among these, 30 were reserved for tribals, five for non-tribals, and five for other groups – and six nominated by the Governor ‘from communities not otherwise represented’ (Mody 2003). This agreement required the amendment of the Sixth Schedule of the Constitution, which was passed in August 2003, creating a Bodoland Territorial Council Area District (BTCAD). Later that month, the parliament passed the Constitution (NinetyNinth Amendment) Bill, 2003 (GoI 2003c).13 This Act provided for protection of the rights of non-tribals by keeping intact the existing representation of the Scheduled Tribes and Non-Scheduled Tribes in the Assam Legislative Assembly from the BTCAD. In all these cases, as with the creation of the three new states in 2000, electoral processes and longer-term games were at work. The BJP has worked hard to gain support of the Adivasis (tribals) who are a high proportion of the population of the Northeastern states. Their support in the state assembly elections of November 2003 was crucial, especially in the new state of Chhattisgarh. Their votes were also important in other states, such as Gujarat (Yadav 2004). Although the electoral gamble has not worked in the BJP’s favour in all cases – witness the INC’s victory in the Uttaranchal state assembly elections in 2002, and the failure of the BJP to win more than one seat in Jharkhand in the 2004 general election – the electoral dimension was an important factor for the BJP.14 In addition, the creation of the three new states is indicative of the perceived security of the Hindi heartland. The fact that worries about the fragmentation of India based on the absence of ‘a large, powerful and well-organised State in the Gangetic Valley’, as expressed at the time of the SRC (1955: 246) are no longer paramount indicates that a sea change has taken place in the considerations of the Indian elite (especially among Hindu nationalists) for whom such concerns have even greater resonance given that this used to be their ‘natural’ constituency.15 In addition to federal reform, developments in Kashmir have been encouraging. The BJP long opposed Article 370 giving the state special PR OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 109 Hindu nationalism and federalism 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 109 [t]he Congress leads among the Adivasis . . . but only by nine points. This is one section that the BJP has consciously and successfully wooed in the recent years. While the NDA has lost votes all over the country and across all social segments, it has actually improved its votes among the Adivasis by five percentage points. (2004) This is not to dismiss all the incentives the BJP has undertaken. Late in 2003, a further constitutional amendment was introduced, recognising PR status, but it was under the NDA that fair state assembly elections were held in Kashmir in October 2002. They were not classified as free and fair by international observers because of the violence perpetuated by groups opposing the elections (BBC 2002). Notwithstanding this, these fair elections were a major development, the significance of which should not be downplayed. Although it can be argued that the Election Commission of India secured the fairness of these particular elections, this has not always happened in the past. There is no necessary incompatibility between opposing the special status of Kashmir – guaranteed in Article 370 of the constitution – and allowing free and fair elections. Indeed, one could argue that opposing the special status of Kashmir requires at the very least, a commitment to free and fair elections in the state. But it remains significant that these elections resulted in the National Conference, a BJP supporter, being voted out of office. As argued before, the existence of disharmony between groups is not necessarily a sign of divide and rule, often only related to the size of the political cake that is being divided. However, although there is nothing inherent within a federation that requires minority protection; in most federations protection for minority communities within the states exist. India is no exception. Although Brass (1982) points out that minority rights depend on the cooperation of the state governments and Wilkinson (2000) has stressed this point more recently, especially in relation to law and order, all states are constitutionally required to provide adequate primary education facilities for children of minority-language groups, or if numerous enough, to permit them to set up their own educational institutions (this provision also applies to religious groups). While linguistic minorities have been discriminated against, the President of India is empowered to appoint a special officer for linguistic minorities; there is therefore a complaints procedure whereby they can seek redress from the centre. Second, at the state level, the constitution prohibits discrimination in the allocation of public funds to religious minority schools.16 Therefore when discussing centre–state relations, the treatment of minorities is relevant. On the latter, the BJP falters. One of the aims of the BJP in courting tribal and Adivasi communities has been to perpetuate religious tensions, as seen in Gujarat. As Kumar and McMillan point out, in the 2004 general election, OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 110 110 Katharine Adeney 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 four new languages in the Eighth Schedule of the Indian constitution, with a promise to recognise many more. The languages of Bodo, Dogri, Maithili and Santhali were recognised. One press report commented that: Mr. Advani said the Constitution Amendment to include Bodo was brought in as part of the memorandum of settlement between Bodos, Assam Government and the Centre. Santhali language was included to keep the balance as it is a widely spoken language by another tribal group in the area. (The Hindu 2003b) India Business World, moreover, argued that the BJP ‘decided to include Dogri language to win back the confidence of the people of Jammu region . . . where it faced [a] rout in the last assembly elections’ (2003). The initiative was welcomed by the Kashmiri Chief Minister, as well as the Jammu political parties who claimed credit for the initiative (The Tribune 2003b). The BJP ultimately failed to reap electoral rewards in the 2004 general election, the BJP losing the seats it had won in 1999 in Udhampur and Jammu.17 This is a significant shift in the BJP’s position towards the ‘unity’ of Hindus. The recognition of regional languages as official languages in the constitution has been an important element of the Indian state’s accommodation of its diversity over time. As argued previously, although the BJP has historically had a commitment to a unitary Hindu nation – it recognised and accepted the power of linguistic identities in the 1950s and 1960s. All these newly-recognised languages are sub-state languages and were demanded by local BJP units for electoral reasons.18 However, the manifesto of the NDA appeared to suggest the opposite policy. The recognition demonstrated a renewed pragmatism and redefinition in what is required for the security of the ‘Hindu nation’. Article 356 Of course, just as interesting and significant as what has been amended, are the things that were not amended. The BJP introduced no proposal to amend the constitution to implement the constitutional changes recommended by the NCRWC in regard to Article 356.19 The emergency powers outlined in Article 356 have been used 115 times since independence (Adeney 2003: 257–9). This was an issue over which the NCRWC commissioned a separate report. The discussion about Article 356 was an important one for members of the NDA and prominent within recent constitutional debates and discussions on federalism in India. The Supreme Court Bommai (Bommai 1994), following the dismissal of the BJP state governments after the Ayodhya demolition, drastically altered the rules of the game by requiring that Article 356 should not PR OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 111 Hindu nationalism and federalism 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 111 be imposed before the state government has a chance to prove its majority on the floor of the house and adequate warnings have been issued by the centre. In both 1997 and 1998, (then) President Naryanan refused to impose President’s Rule. He argued that using the criteria laid down in the Bommai judgement, the state government must a) be warned and given the chance to change its policies, and b) given the chance to prove its majority in the state assembly. Since the NDA has come to power, Article 356 has been used only four times. In February–March 1999 it was imposed on Bihar for 26 days because of the decline of law and order in that state before the Rajya Sabha refused to ratify it. It was imposed in Manipur in 2001 for 276 days, being lifted in March 2002. This followed the collapse of a coalition, and continued in light of violent agitations within the state. It was imposed in Uttar Pradesh in March 2002, following the results of an inconclusive state assembly election, and was lifted 68 days later in May 2002. Finally, it was imposed for 17 days in October 2002 in Kashmir while the People’s Democratic Party (PDP) and the INC negotiated the terms of the coalition formation. The NCRWC rejected the abolition of the article. ‘Article 356 should not be deleted. But it must be used sparingly and only as a remedy of the last resort and after exhausting action under other articles like 256, 257 and 355’ (Recommendation 166).20 The one constitutional change they recommended was that ‘the State Legislative Assembly should not be dissolved either by the Governor or the President before . . . Parliament . . . has had an opportunity to consider it’ (Recommendation 173). They also recommended that ‘The Governor should not be allowed to dismiss the Ministry, so long as it enjoys the confidence of the House’ (Recommendation 168). None of these proposed constitutional changes have yet been implemented. Regardless of the lack of constitutional changes, following Narayanan’s precedent it will be difficult to impose President’s Rule in the future. Even if a future governing coalition gained a majority in both houses it would be hard to impose Article 356 given the opposition of many of the state-based political parties, of which all future governments are likely to be comprised. Any discussion of Article 356 in the context of centre–state relations is of course, made all the more poignant by the fact that the BJP refused to use the Article to dismiss the Modi administration in Gujarat. Modi’s BJP administration was widely condemned for, at best, failing to prevent the violence of February/March 2002 and, at worse, aiding and abetting it (Human Rights Watch 2002). During the violence, in which up to 2,000 people, mainly Muslims died (Ali Engineer 2003), several opposition political parties called for the imposition of Article 356 – a much better case is harder to think of in recent times – but the NDA did not. The reticence of political parties, such as the TDP, to condemn the BJP was seen as a sign of their political weakness, but must also be seen as an example of their unwillingness to sanction the dismissal of a state government by a mechanism PR OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 112 112 Katharine Adeney 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Conclusion Many of the changes identified above were significant for centre–state relations, especially the consensus over the changes to be made to Article 356 and the political reorganisation and accommodation of groups in the Northeast. However, to a large extent, they built on policies of the previous administration. The NDA, and BJP as the majority party within it, were reacting to the changes of economic liberalisation, the Bommai judgement and the proliferation of political parties with a regional and secular focus without doing anything to bring these changes about. In addition, while the behaviour of the BJP within the coalition was ostensibly pragmatic, the old adage remains; it is impossible to say whether it would remain pragmatic outside the constraints of a coalition. The events in Gujarat, though, are not an encouraging example and the recently passed anti-defection PR OO The INC in its turn, despite its use of the power in the past ‘has realised the need for constitutional safeguards against the misuse of the Article, as the party is in power in many States and face[d] the risk of politically motivated action by the Centre’ (Venkatesan 2003). Interestingly, unlike in the second ISC when four Chief Ministers called for the abolition of the article (Sáez 2002), only Punjab and Tamil Nadu called for its abolition in 2003. Despite the consensus to retain the power, the ISC argued for a constitutional change along the lines of Bommai. However, no constitutional bill was introduced under the NDA. F ON that its earlier obsession with the principle of a ‘strong Centre vis-a-vis the States’, in conformity with its nationalistic and patriotic platform, would yield little political ground. (2003) LY through which they had suffered in the past. The BJP was, therefore, using trends in centre–state relations to its advantage, as arguably it had been doing in wooing Adivasis. This is an example of a federal mechanism which could have protected a minority community deliberately not being used. All the above is indicative of the fact that in recent years a wider consensus has evolved on the use of Article 356. At the eighth meeting of the ISC, held in August 2003 in Srinagar, ‘Advani, said it was decided that Article 356 should be used as a measure of “last resort” and not as an initial preference’ (Misra and Fazili 2003) and ‘[i]t was decided that the Union Government could consider incorporating suitably the essential features of the Bommai judgement in the Constitution’ (Prime Minister’s Office 2003). This is a change that has been wrought by politics as much as by ideological commitment. As Venkatesan argues, the BJP’s experience of coalition politics has meant 05_coalition296 16/2/05 12:35 pm Page 113 Hindu nationalism and federalism 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 113 law made it difficult for smaller coalition partners to defy the BJP. As one commentator has suggested: What few had foreseen was the way in which such smaller parties would slowly be marginalised within the NDA by the BJP. . . Nowhere was this as clearly illustrated as in the Gujarat carnage of 2002, when the sound and fury of the pluralist allies fell far short of a complete break. It has been equally clear in the way key portfolios like telecommunications . . . moved out of the orbit of smaller allies and firmly into the BJP’s own sphere of influence. (Rangarajan 2004) In addition, there were several issues over which the BJP was less willing to compromise, even with its own coalition partners. The BJP may have been generally pragmatic in relation to centre–state relations, partially because its own ideology in relation to federalism is ambiguous, and partially because it was pursuing a longer-term endgame. But in relation to issues such as education, the situation has been rather different (Ansari 2001).21 The BJP ignored the concerns of its coalition partners, notably in Jammu and Kashmir and Meghalaya as shown here, and over the changes to the curriculum (Ansari 2001) and the Government Advisory Board bypassed the states in the consultative process over this issue.22 Moreover, other issues, although not specifically discussed in this chapter, such as the dispute over the application of the Prevention of Terrorism Act (POTA), will have growing import in centre–state relations. Many ‘saw the gamut of discursive practices surrounding the act as attempts by the . . . (BJP) to find a substitute for Ayodhya’ (Kumar Singh 2004). POTA was used in controversial circumstances by Jayalalitha, Chief Minister of Tamil Nadu, to imprison the general secretary of the MDMK, Vaiko.23 The Government initially refused to condemn the ‘misapplication’ of the Act. On the one hand, this could be seen as positive development regarding the autonomy of the states vis-à-vis the centre – the centre refusing to intervene even though a non-member of the NDA imposed the Act on a coalition partner. However, the initial refusal to address the concerns of the MDMK and DMK (the centre subsequently condemned the misapplication of the Act) has to be seen in the context of the politics of the NDA and those internal to Tamil Nadu. In the last year of its administration, the BJP moved much closer to Jayalalitha, thus the refusal to deal with the demands of the DMK was seen by some commentators as a move to force the DMK out of the alliance to let the AIADMK come back in (Tripathi 2003).24 Coalition partners expressed concern that the interests of the smaller parties were ‘being pushed aside by the dominant players . . . the BJP chose its alliance partner to its advantage even though it hurt the political interest of another [party] in the coalition’ (Suryamurthy 2003). As Kumar Singh (2004) points out, irrespective of the decisions taken and PR OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 114 114 Katharine Adeney 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 the manner in which the law has been implemented, has been the centralisation of security matters in the hands of the centre. This fits in with the centralising agenda of Hindu nationalism. In addition, the perception has been that POTA has been deployed disproportionately against Muslims. One example was ‘[t]he Gujarat government, for instance, had charged 131 persons, all Muslims, accused of being involved in the Godhra arson case under POTA’ (EPW 2003). On the 16 December 2003, the Supreme Court ruled that there was a distinction to be made between subjects that fell under ‘public order’, a state subject and ‘situations of terrorism’. As discussed by Kumar Singh (2004), the Supreme Court ruled that parliament had legislative competence in the latter on the grounds that terrorism was an issue that could not be confined to one state only. Following this, in March 2004, the Supreme Court ruled that despite the new Uttar Pradesh state government under Mulayam Singh wanting to withdraw proceedings against ‘Raghuraj Pratap Singh alias Raja Bhaiyya, independent MLA and [former] minister in the BJP-BSP coalition government in the State’ they could not do so (Kumar Singh 2004). The court ruled that the proceedings for withdrawal could only be initiated by the centre, even though law and order is a state subject. To conclude, it is notable that parties, such as the AIADMK, took it upon themselves to out-BJP the BJP as seen in the anti-conversion bill that banned religious conversions by ‘allurements or force’ introduced in Tamil Nadu in October 200225 and the refusal of Jayalalitha to condemn the violence against Muslims in Gujarat.26 Others have perceived themselves as being too weak to challenge the BJP (the TDP in the wake of the Gujarat violence). However, there is little chance that a major reform of the federation would be successful, or even advocated by the BJP, precisely because of the ambiguity in Hindu nationalist thought in this regard. In the current political climate, centralisation is not an option; any expansion of the BJP seeking to become the majority party in states such as Tamil Nadu would require recognition of regional identity and autonomy. Yet, the long-term endgame of Hindu nationalism may mean that their aims could be achieved by less drastic institutional changes. It is in this spirit that the personnel changes made to the National Human Rights Commission (NHRC) and Social Science Research Council (SSRC) may have longer-term implications for the Indian polity, and religious minorities specifically. Acknowledgements The author would especially like to thank Christophe Jaffrelot, Therese O’Toole, Lawrence Sáez and Andrew Wyatt for their comments on earlier drafts of this chapter, in addition to the participants at ICS in February 2004 and at NETSAPPE in Paris in June 2004. PR OO F ON LY 05_coalition296 16/2/05 12:35 pm Page 115 Hindu nationalism and federalism 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 115 Notes 1 I am indebted to Christophe Jaffrelot for bringing this important point to my attention. 2 Although the creation of Jharkhand had a tribal basis, the boundaries of Jharkhand do not correspond to the historic ‘Jharkhand’. The creation of the three new states has been eloquently discussed by Emma Mawdsley (2002). 3 These regional assemblies are the Janapadas discussed earlier. 4 However, the BJS did not endorse the Sachar formula, which divided the state into a Punjabi speaking and a Hindi speaking part. Both parts had to learn the other language but only from the last class of primary education. 5 An almost exception was Wyatt, who argued that the ‘1999 result has given the alliance a working majority and it may come close to completing a full term in office’ (2001: 389). 6 As discussed by Alistair McMillan’s contribution to this volume (Chapter 1). 7 I would like to thank John Echeverri-Gent for alerting me to this fact, and he discusses the issue in Echeverri-Gent (2002: 40). 8 This move had been proposed by the Ministry of Finance in 1999. 9 I am indebted to Aseema Sinha for bringing this to my attention. 10 Which will become the Constitution (Eighty-Eighth Amendment) Act. 11 Although most states have ‘drafted and modified the VAT Act . . . the country is not yet close to its implementation’ (Rediff.com 2004) 12 In the 2004 elections the INC held the seat for Nagaland – the BJP did not stand in the constituency. 13 Which became the Ninetieth Amendment to the Constitution. 14 The BJP won ten out of the 11 seats in Chhattisgarh in 2004 and three out of five in Uttaranchal. 15 The BJP won only ten seats in the 2004 general election. This compares unfavourably to the 1999 result when they won 29 seats (although this was out of 85 seats), and even more unfavourably to previous elections (57 seats in 1998, 52 in 1996 and 51 in 1991). See the contribution by Christophe Jaffrelot in this volume (Chapter 12). 16 The extent to which this has been applied in a neutral fashion under the BJP government is discussed in Marie Lall’s contribution to this volume (Chapter 8). 17 Although this was a trend seen elsewhere, as is discussed in more detail by Christophe Jaffrelot (Chapter 12). 18 I am indebted to David Stuligross for this observation. 19 A recommendation of the Commission, although not a proposed constitutional amendment. 20 But they argued that a new convention should be encouraged that the Centre should use Article 355 and issue directive to states to ensure compliance with the law before Article 356 is used. 21 The issue of education is discussed by Marie Lall in Chapter 8 in this volume. 22 I am indebted to E. Sridharan for bringing this to my attention. 23 Vaiko had had given a speech supporting the LTTE, a proscribed terrorist organisation under POTA. He made the speech in July 2002 and remained imprisoned for 19 months until February 2004, See Subramanian (2004). 24 This strategy proved to be fatal for the BJP and the AIADMK in the 2004 General Election. 25 Similar laws already existed in Madhya Pradesh, Arunachal Pradesh and Orissa (Sathiya Moorthy 2002). Jayalalitha withdrew this Act after the failure of the AIADMK to win any seats in the 2004 election. 26 This action has been discussed in more detail by Wyatt (2004). PR OO F ON LY