TNA will not find solutions in India

Dr Kamal Wickremasinghe

The views expressed by the TNA ‘leadership’, so far, regarding the planned Northern Provincial Council elections demonstrate a lack of commitment to seeking reasonable solutions to any real or perceived problems faced by the Tamil people. The TNA’s lack of good faith in negotiations on any ‘federal’ solution not involving an Eelam of their design demonstrates a lack of commitment to the essence of federalism - compromise.

The English word ‘federalism’ originates from the Latin word ‘foedus’, meaning ‘covenant’; The covenant referred to is the governing structure of the early Christian Church devised by the Apostles and elders, representing the universal and the local churches respectively.

The covenant of the early Christian church was founded on the agreement that small local churches would fit in to a broader structure of the ‘universal’ church operating to serve the common interests, essentially of spreading the ‘good word’. The process that led to agreement involved negotiation and compromise.

Later, countries in Europe adopted federalism as their preferred system of governance - currently European countries with federal constitutions include Austria, Belgium, Germany, Switzerland, Bosnia-Herzegovina and Russia. Spain that incorporates many attributes of a federal system does not define itself as federal. Outside Europe, the US, Canada and Australia have well-known federal systems of government.

Of course, the federal model of government had previously existed in many parts of the world, including in India, in the form of 16 Mahajanapadas (600-321 BC) mentioned in the Buddhist texts, that later evolved from tribally-based identities to territorial ones, to janapadas, and states that represented the tribes, and finally to monarchy.

The TNA’s trip to India to complain about the government standing in the way of getting the Eelam shows an apparent lack of awareness about the key features of India’s current Federal system and India’s struggle over the last 66 years to maintain national integrity in the face of separatist demands similar to the TNA’s by diverse regional groups.

India knows the disruptive influence of Tamil and other forms of separatism

The TNA needs to note that the modern India envisioned by the Indian National Congress (INC) and Shri Jawaharlal Nehru is not made up of territories ear marked for ethnic groups due to, the need to foster national unity, and like the Sri Lankan Tamils, most ethnic minorities live across India.

The TNA would be well aware that the attempts by Tamil extremists in Tamil Nadu to press secessionist claims along linguistic lines are treated with contempt by the rest of India including the Central government, due mainly to the threat it poses to the Indian Union, as well as the fact that many Tamils live outside Tamil Nadu.

Jawaharlal Nehru made his views on separatism clear when he said in a 1953 speech - “… unfortunately, there are inherent in India, separatist and disruptive tendencies which made India suffer in the past. In preserving its unity, India needs to fight communalism, provincialism, separatism, statism and casteism.”

Nehru’s words in 1953 refer to the Indian counterparts of the sort of battle the TNA is waging against the enlightened Tamils and the broader Sri Lankan polity in 2013, without learning lessons from the unwarranted bloodshed over the last 30 years.

Jawaharlal Nehru

J Jayalalithaa

Hillary Clinton

The reasons outlines by Nehru in 1953 are valid for the 2013 Sri Lanka - demands for minority rights based on ethnic identity threaten the sovereignty of Sri Lanka. The other major reason against separate enclaves is the fact that many ethnic Tamils as well as Tamil speaking Muslims and Moors live predominantly in areas outside the Jaffna peninsula, Colombo being the prime example.

The TNA leadership, preoccupied with political expediency, do not seem to care about the future status of Tamils outside Elam, in the unlikely event such an entity is established.

Nehru’s concerns were founded on the universal experience in developing countries that the acute sense of loyalties to ethnic and regional identity, nurtured by the system, invariably manifests itself as antagonism towards the nation.

Economic ‘problems’ resulting from the overall poverty of the nation are easily attributed to ‘deprivation’ by the centre through long-term neglect in development, and unfair redistribution of resources. Such warped reasoning gives rise to challenges to the legitimacy of the state, and national unity and integrity.

Nehru’s deep feelings against such disruptive national ‘weaknesses’ are reflected in the constitutional safeguards in India’s federal structure in the form of ‘unequal’ distribution of powers between the Centre and the states, with only a set of specified legislative and administrative powers devolved to the states. Most importantly, the Central government of India retains all “residual powers”.

In addition, the Indian Constitution has been made easily amendable as an added insurance against the contagion of problems in States to the country as a whole.

The Indian federalism is designed to nurse the raw wounds of colonialism

The Indian emphasis on unity of the post-independence India emanated from the independence fighters’ memories of the battles they fought against the British colonial division of India in to directly-ruled provinces and some 560 ‘indirectly-ruled’ autocratic princely kingdoms incorporating religions, tribes, and languages, that added complexity to regionalism in India.

India’s unique mode of federalism built around a strong Central government, along the lines of the unified Indian kingdom of King Ashoka, was the INC’s defence against future colonial subjugation of India through the exploitation of its disunity and the absence of nationalistic spirit.

The limitations on state powers arising from the progressive social outlook of the INC and the need to maintain national integrity following the trauma of partition make Indian federalism distinct from the established models in countries such as the US, Switzerland and Australia.

In India, the Parliament has the powers to alter the boundaries of a state without the consent of the state; Since 1956, the State Restructuring Commission has redesigned the nation into 28 States and 7 Union Territories. The states do not have the right to secede; and there is no division of public services.

Federalism in India contrasts with Australia for example, where the six colonies that joined together to form a Federation in 1901 “ceded” some of their powers, specified in section 51 of the constitution, to the new Commonwealth Parliament. The Commonwealth’s legislative power is limited to the areas specified in section 51, and all other "residual powers" remain in the states’ domain.

India’s model of a ‘unitary state with federal principles’ rather than a ‘federation with a weak Central government’ has been legally challenged by the states, as to be expected - the first significant legal challenge was posed by the State of West Bengal when the Union proposed to acquire some coal bearing areas in the State under the Coal Bearing Areas Acquisition and Development Act (1957). The state contended that the Act did not apply to lands vested in the state and that the Act was beyond the legislative competence of Parliament.

The Indian Supreme Court ruled that - “The Constitution of India is not truly Federal in character. The basis of distribution of powers between the Union and States is that only those powers which are concerned with the regulation of local problems are vested in the States and the residue specially those which tend to maintain the economic industrial and commercial unity of the country are left to the Union. It is not correct to say that fall sovereignty is vested in the States (State of West Bengal v. Union of India, 1962).”

In a more recent case, Pradeep Jain v. Union of India (1984), involving a complaint against the states’ denial of admission to medical courses for students not ‘domiciled’ in the state, the Supreme Court of India held (per Bhagwati, P. N. and Ranganath Misra, JJ.) that - “The entire country is taken as one nation with one citizenship and every effort of the Constitution makers is directed towards emphasizing, maintaining and preserving the unity and integrity of the nation. …and every citizen has a right to move freely throughout the territory of India and to reside and settle in any part of India, irrespective of the place where he is born or the language which he speaks or the religion which he professes and he is guaranteed freedom of trade, commerce and intercourse throughout the territory of India …”

Since the promulgation of the Union, the lists of powers specified in the constitution under the “Union” and “Concurrent” lists have increased and the “State” list reduced. The Central Parliament also has the powers to legislate in subject areas identified in the State list, if required to safeguard national interest, subject to a two thirds majority in Parliament.

Other extraordinary powers of the Central government specified in the Constitution includes Article 356 which empowers the President to enforce Central government administration when a particular state government is deemed to be unable to carry out is functions in accordance with the provisions of the constitution. The INC government of Jawaharlal Nehru invoked this provision early, in 1951, by dissolving the assembly of the Punjab.

Though the Indian constitution assigns ‘Public Order’ and ‘Police’ powers to states, it grants the Central government the powers to extend the jurisdiction of the members of the Police Force of one state to another, with the consent of the latter state. The State Police power is also curtailed by the Central government powers to deploy, the Armed Forces or ‘any other force’ in any state for the purposes of maintaining public order.

In addition, the Central government has the powers to deploy the Central Bureau of Investigation officers with Police powers against specified offences under its full administrative control and direction, and Central Bureau of Intelligence officers who have no Police powers but powers of collection and analysis of intelligence relating to national security.

India still experiences problems

The Indian federal structure that incorporates the right vision in relation to maintaining national unity and recognition of ethnic diversity, moderated by strict constitutional safeguards against regionalism, has not managed to keep separatist tendencies away - it seems the creation of multiple power centres in any nation nurtures conflict.

Apart from the chronic Tamil extremism in the South, separatist demands in the Northeast region of India (comprising Assam, Nagaland, Manipur, Arunachal Pradesh, Mizoram, Tripura and Sikkim) continue to pose a grave threat to India’s territorial integrity.

The region’s nearly 40 million inhabitants showing racial, linguistic, religious diversity, surrounded by Bhutan, Myanmar, Bangladesh and China, and connected to the Indian mainland only by a small corridor of land referred to as the 'chicken's neck’ have started a multitude of separatist movements that seem to engage in inter-community, communal and inter-ethnic conflicts, citing natural resources, migration, displacement, social exclusion as related causes. The politics of identity lie at the heart of the conflict.

The problems afflicting Indian federalism are essentially sourced from the relative political weakening of the Central government that began in the late 1980s, through compulsion to form coalitions with regional parties. Currently, the national parties INC and the BJP are unable to form governments in their own right, making regional and small local parties based on ethnic identity the ‘king makers’.

The bargaining process involved has enabled these groups to pursue ethnic and regional agenda’s, bypassing all the constitutional safeguards, and contrary to the original vision of national unity.

Added to this is the effects of international influence under the guise of globalisation, that has enabled states like Tamil Nadu developing foreign relations independent of the Centre - Jayalalithaa is a ‘close friend’ of Hillary Clinton!

States of the Indian Union presently exercise a greater measure of autonomy than is allowed to them on the basis of the division of powers originally provided in the Constitution. The Rajiv Gandhi government’s attempted solution to the problem, the village level ‘Panchayati Raj’ system, introduced in 1993, has been rated by an Expert Review Committee as an initiative of which “outcomes have nowhere near matched outlays”.

We can learn from the Indian experience

Sri Lankans need to take a step back from considering federalism as the panacea for any ethnic issues the country is facing. Federalism in its pure form, or in the diluted form as practiced in India, does not have the capacity to accommodate ethnic diversity in Sri Lanka while maintaining national unity, due to the dispersal of ethnic groups throughout the island. The creation of dedicated regions for particular minorities will attract resentment of the majority, as well as other oppressed groups like the so-called lower-caste Tamils.

The academic argument that federalism helps to secure democracy and human rights is founded on the uncritical adoption of roots in the contemporary ‘public choice theory’ ideology. The ‘theory’ propounds that “voters, politicians, and government officials all are agents who interact in the social system on the basis of self-interest”.

Proponents of federalism further argue that smaller political units afford better opportunities to individuals to participate in decision-making, than a monolithic unitary system of government. Interestingly, the theory provides that individuals (meaning regions, states and other devolved units) dissatisfied with conditions in the state have the option of ‘leaving’.

Like with all Western ‘Trojan horse’ ideologies devised for the consumption of developing country intellectuals, such theories have taken root in Sri Lanka despite the fundamental incompatibility of the belief that the behaviour of ‘all’ people is ‘always’ governed by self-interest, including in social systems founded on eastern philosophies such as Buddhism, Hinduism, Confucianism, and Christianity.

The theory may hold true with people like the Bush family in America, Dick Cheney and Barack Obama, but certainly not universally in more civilised societies.

The imperative for Sri Lanka is to adopt institutional principles of national governance that helps nurture the thought of all citizens identifying with the nation, with commitment; Recognising ethnic diversity adequately, without making it the be-all and end-all, is part of creating the sentiment of belonging to the larger polity: the level of recognition of ethnicity in the constitution, and through state symbols institutional principles needs to be made contingent on the historical experience of ‘politicising’ ethnicity in the Sri Lankan context.

Recognition of ethnic diversity unduly, as the defining factor between citizens, elevates ethnic identities to political identities, a process that will devour national identity. Due to this reason, federal designs based on ethnicity as the basis of existence, similar to the model imposed by the West on the basket case of Ethiopia, are not suitable for Sri Lanka.

The TNA’s Indian visit certainly will not yield results favourable for their divisive agenda and they need to understand that their desire to lead an Elam government could easily give rise to another cycle of violence.

Not implementing S13 will not give rise to the same result!