Chains of Command

With federal resistance to the CAA, Article 256 prepares to take centre stage

In 1968, Yashwantrao Chavan (right), the home minister in Indira Gandhi’s cabinet, warned the Kerala chief minister EMS Namboodiripad (left) to heed Article 256 of the Constitution. Now, the Modi government has issued the same warning to Kerala again. Left: James Whitmore/The LIFE Picture Collection/Getty Images; Right: Keystone/Getty Images
01 March, 2020

“I am issuing this warning because we should all be concerned about the country,” Prime Minister Narendra Modi told both houses of parliament a week into the budget session. “If the Rajasthan assembly passes a law but no one in Rajasthan is ready to obey it,” he asked, where would it lead? “Can the country run like this? Should we go on the path to anarchy?”

Only what had irked Modi was not the residents of a state defying local legislation, but entire states lining up to resist a central law—the Citizenship (Amendment) Act. To date, a dozen states and the union territories of Delhi and Puducherry have rebelled against the CAA. Six of them have also adopted resolutions denouncing it. Modi’s reproach was aimed at this reality.

India’s federal balance is under strain, with a stern centre snarling at recalcitrant states. We have witnessed a similar combat before. That early episode—and its unlearnt lessons—ignited a belligerence that still gnaws at Indian federalism.

Kerala was the first state to pass an anti-CAA resolution, just before the new year, and the first to invite the centre’s ire. Early this January, the union law minister, Ravi Shankar Prasad, chided Kerala’s chief minister, Pinarayi Vijayan, for piloting an anti-CAA resolution through his state assembly and promising to flout the law. “CAA has to be implemented,” Prasad said at a press conference, and Kerala could not dodge it. 

Decades earlier, Kerala was also the nucleus of the first centre–state scuffle over unenforced laws. In 1968, the union law minister in Indira Gandhi’s cabinet, Panampilly Govinda Menon, scolded another Kerala chief minister, EMS Namboodiripad, for threatening to neglect a central law: the Essential Services Maintenance Ordinance. Both law ministers, a little over fifty years apart, relayed a similar message to the Kerala government: obey the Constitution. In particular, obey Article 256. 

India is a cow-shaped union. It functions with a narrow head—the centre—and a bloated body—the states. While the centre commands expansive powers, it has limited personnel to administer them. Only in some sectors has the union government established its own machinery—defence, foreign affairs, communication, railways, income tax and so on—empowering it to both enact and, usually, enforce laws by itself. In other fields, the centre may ordain, but only the states can accomplish them. Consider the census. It is a decennial central exercise, but maintaining a permanent workforce for this brief assignment is inefficient, so the states loan manpower to the centre. The same is true of general elections.

The CAA and the proposed country-wide National Register of Citizens are central initiatives, but both require state cooperation. And this is what the states are plotting to withhold. With the CAA, states have a limited role: they must help the centre to identify beneficiaries, and, from there, enrol new citizens into local government schemes. Their remit is much greater with the NRC. States must build detention centres, catalogue aliens and intern them until they are legally processed and repatriated, if at all. 

Article 256 sits in Part XI of the Constitution—the one that defines relations between the union and the states. Part of the country’s colonial inheritance, it originated in the 1935 Government of India Act, a section of which forbade provinces to “impede or prejudice the exercise of the executive authority of the Federation.” When the provision was presented as a draft before the Constituent Assembly, the members did not interrogate or amend it. Instead, they adopted it without comment or dissent. Article 256 instructs states to comply with parliamentary and local laws, and empowers the centre to issue directives to exact compliance. Still, in 1968, Namboodiripad defied the centre. Wielding the “big stick,” he told the Indira Gandhi government, would not bring the state to cower in compliance. 

Article 256 is not an idle mandate. A regime of punitive provisions scaffolds it. Article 365 stipulates that if states do not comply with or give effect to central directions, the president may hold that “a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution.” Article 356 authorises the president—in practice, the union cabinet—to wrench state governments from office and dissolve state assemblies if they cannot be run in accordance with the Constitution. Articles 256, 365 and 356 are a triad: one alerts; another warns; and the last one wallops. The big stick can sting. And in Kerala in the late 1960s, it did.

In 1968, central ministers and unions representing central-government employees across the country held frantic parleys over a need-based minimum wage. With no accord reached, the unions resolved to strike in mid September. The centre retaliated with the Essential Services Maintenance Ordinance. The ESMO outlawed strikes in essential services—including the “refusal to work overtime”—and any actions instigating, inciting or supporting them.

If government employees picketed in violation of the ESMO, only the states could charge and prosecute them. The law-and-order complex—prosecutors, magistrates, courts and prisons—was in state hands, as it still is. But Namboodiripad, a devout communist, rebuffed the ESMO. He protested that denying public employees the right to strike and compelling them to work overtime was unconstitutional. His ministers reportedly goaded staff to breach the law and honour the picket.

Earlier, with the Congress holding a near monopoly on power across the centre and the states, federal feuds were largely in-house affairs. The party’s national forum doubled as a federal conclave—an inter-state council of sorts—and national and state Congress bosses transacted over, or negotiated away, their differences. In the general and state elections of 1967, the Congress under Indira Gandhi returned to power in Delhi, but was stripped of its imperial majority. In many states, regional parties won their first taste of power. (Kerala was ahead of its peers. It had elected the first non-Congress state government in independent India a decade earlier, giving Namboodiripad his first stint as chief minister. In 1967, he returned to office for a second time.) Predictably, clashes erupted. With the in-house forum suddenly of little use, the centre reached for the Constitution’s formal processes—the big stick—to squash dissent.

Days before the planned strike, the union home minister, Yashwantrao Chavan, radioed a message to all states: instruct local authorities to arrest and prosecute instigators. Kerala stonewalled. Chavan alerted Namboodiripad to Article 256 and its ironclad mandate. The Kerala administration altered its stand and promised to implement the ESMO. Still, cynical of the assurance, Chavan dispatched a Central Reserve Police Force battalion to guard key assets in Kerala. It was a unilateral act; the minister neither consulted the state nor solicited its consent. 

On 19 September 1968, India’s central administrative system collapsed as employees across the country flouted the ordinance in large numbers. Trains got delayed, communications disrupted, and defence production dwindled. Alongside the public losses came police brutality. At Indraprastha Estate in Delhi, scuffles broke out between those who obeyed the strike and those who did not. Police bloodied the protesting employees. Reports of police firings rolled in from Gauhati to Pathankot. Ten people died; hundreds more bled. Ten thousand protestors were arrested. The centre suspended seven thousand employees and dismissed another four thousand entirely.

Still, Kerala found sly ways to needle Delhi. Three months after the strike, the state only tried charges of serious violence against persons or properties, and withdrew all other cases. The state’s inspector general of police was directed to enable this prosecutorial largesse. The Kerala High Court annulled that order in Deputy Accountant General (Admin) vs State. Why should cases of rioting and simple hurt lapse, it asked, because they involve offenders in large numbers with mass support? And condoning simple hurt one day, the judges warned, may mean condoning “grievous hurt another day and who knows what the day after.” So no, the court decided; all prosecutions would continue. 

Earlier, the Calcutta High Court had reasoned its way to a similar conclusion when reviewing a similar order. In March 1967, the communist government in West Bengal ordered police passivity on labour matters. If workers gherao-ed—encircled—and confined managerial staff, the police were not to intervene or rescue them. Instead, they were to inform the labour minister. In Jay Engineering Works Limited vs State, the high court alerted the state government to Article 256 and its injunction to obey central and local laws. The provision is mandatory, the court stressed: ministers cannot issue directives contrary to it. Judges annulled the order and commanded the police to observe ordinary procedures. 

The Kerala affair bestirred hostile exchanges in the Lok Sabha. Immediately after parliament reassembled in November 1968, opposition parties lobbed a lengthy chargesheet at the government: the strike ban, the Kerala fiasco, the union ministers’ conduct and the brutal aftermath. Day one of the session: a no-confidence motion against Indira Gandhi and her council of ministers. A week later: acrimonious parleys on centre-state relations as defined in the Constitution. And still some days later: a dense combat between the government and the opposition over the Essential Services Maintenance Bill. (Ordinances are temporary. They gain permanence once parliament enacts them.) 

The exchanges scrambled political loyalties in parliament. The conservative Jana Sangh huddled with the communists; the Swatantra Party, champions of free-market economics and the largest opposition force, defended the statist Congress. In his opening salvo, Kanwar Lal Gupta, a Jana Sangh member, highlighted how a collapsing economy brewed despair among central employees. But the centre had them gunned down for demanding dignity, he said. Across India, the police had acted like “criminal law breakers.” Minoo Masani, the leader of the Swatantra Party, assailed such reasoning. He wanted an inquiry into police brutality, but saw nothing wrong with the ordinance. In his eyes, the government “did the right thing. For once it showed courage in maintaining law and order.” 

Pratap Kesari Deo, a one-time member of the Swatantra Party, defended the deployment of the CRPF in Kerala. “What Kerala did was to throw a challenge to the central government in exercising its constitutional duty and violated Article 256 in clear terms.” Murasoli Maran, of the Dravida Munnetra Kazhagam, disagreed. “Healthy conventions demand that the central government should consult with the states before promulgating an ordinance,” he suggested. Tomorrow the roles might be reversed: there may be a non-Congress centre and a defiant Congress-ruled state. Would Congress members then welcome similar treatment, he posed. “Any estranged relationship between the centre and the state is due to the shortcomings inherent in our Constitution,” Maran argued, accusing the document of a “lack of faith in the states.” His solution? Change the farcical federalism to create a real one.

A similar debate raged outside parliament. The Times of India, in an editorial, charged Namboodiripad with “a grave constitutional impropriety.” The Economic and Political Weekly pleaded for friendly consultations, insisting that the “relationship between the Centre and the States is not hierarchical but organic.” Kerala had waged a lonely battle, but if “half a dozen States had expressed reservations about the Ordinance, the Central Government might have been persuaded to reconsider its provisions,” EPW’s editors guessed. 

All India Radio convened a panel to dissect the constitutional nuances. Moderated by the fifth chief justice of India, SR Das, it included India’s first attorney general, MC Setalvad, and the law secretary, RS Gai. All three underlined the Constitution’s unitary instincts. Das asked if states can refrain from enforcing “lawless laws”—ones alleged to infringe on fundamental rights. States may plead with the centre, Setalvad expounded, but beyond that they must comply.

Even so, only muscular central governments can intimidate states with the big stick. In October 1979, the caretaker central cabinet under Charan Singh issued the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Ordinance. Weeks before the seventh general election, the ordinance armed the centre with indiscriminate powers of preventive detention. Again, enforcement fell to the states, which were directed to create “advisory boards” to pre-assess detention orders. But a majority of chief ministers assailed the law. It was a ruse to target opposition leaders, they complained, not hoarders and blackmarketeers. 

This time, West Bengal’s communist chief minister, Jyoti Basu, fronted the resistance. Preventive detention, he explained, fell short of a “civilized procedure.” His state neglected the ordinance, and five Jana Sangh-run states—Bihar, Haryana, Gujarat, Madhya Pradesh and Rajasthan—joined in. The centre, frail and dying, did not brandish the big stick, and amid the buzz of the election the matter fizzled out. The defiant states got away with it.

A country with nearly sixty registered political parties, many of them holding power, cannot escape federal spats. But the creases do not matter. What matters is how they are ironed out. In 1968, Namboodiripad lamented the big-stick approach to dissent. Obsessively and legalistically parsing the Constitution to smother states into silence, he warned, cannot resolve India’s problems. He longed for “national leaders with vision and imagination.” But no new federal imagination arose. Instead, fifty years on, wielding the big stick persists as India’s only approach to centre–state politics. Alarmed by anti-CAA resolutions in state assemblies, the Bharatiya Janata Party-led government, like the Congress of yesteryears, has belaboured Articles 256 and 356. Ministers boast of not giving an inch; BJP members taunt rebel states with the centre’s coming wrath. What was once the Congress’s coercive idiom is now India’s only language of federalism.

Correction: The caption for the accompanying image earlier mistakenly identified the person on the right as Panampilly Govinda Menon, the law minister in Indira Gandhi’s cabinet in 1968. In fact, the person shown is Yashwantrao Chavan, the home minister at the time. The Caravan regrets the error.