The Concurrent List is a hindrance to good federalism

In the last two weeks the DMK government of Tamil Nadu has started following the West Bengal government's example: it has begun to precipitate a very old issue, namely, the rights of the states vis-a-vis the Centre.

First, it demanded rent for the use of the states' land for airports.Then, it passed a law that takes away the power of the governor to appoint vice-chancellors in the state's universities.

Independently, the Supreme Court has also admonished Tamil Nadu's governor — who, constitutionally, is an agent of the central government — to stop referring all matters to the Centre. Do your job, it seems to be saying, use your discretion.

Meanwhile, two other state governments have indicated that they will also ask for rent for airport lands. Mamata Banerjee has ordered her police to ensure BSF personnel don't get to operate within 50 kms of the international border.

These stirrings could be the beginnings of a major confrontation with the Centre, in which all non-BJP ruled states participate.

There is a structural reason for why the Centre-State problem is perennial: the Indian constitution isn't genuinely federal. It is also unique because it is so process driven that it is very nearly a rule book for the governance of India. That may have been needed till now. But no longer.

In fact, 60 years ago the Supreme Court, in a fit of ambiguity, said that we have a 'unitary constitution with federal features'. That is, we are neither fish, nor fowl.

The problem requires a complete overhaul of the Constitution in which, according to me at least, the concurrent list is abolished and the items in it redistributed between the states and central lists.

It was the great H M Seervai, one of the greatest liberal legal minds, who first pointed out that the Indian constitution was, for the most part, a copy of the Government of India Act of 1935 whose sole purpose was to make the central government all-powerful.

This was of a piece with the system of 'dyarchy' introduced in 1919 via which Indians were to be given some chota-mota powers. Real power would rest with the central government.

The amazing thing is that while the Congress kept talking of diversity otherwise, it made no concessions to it in matters of governance. Nor has any other government.

Instead the states that seek genuine federalism — from Kashmir to Kanyakumari and Gujarat to Bengal — have been painted as villains.

But now many states are economically very strong. Many are politically very strong. Many are both.

And they all have a vested interest in keeping India as a unified federation, rather than subscribe to the Supreme Court's copout description — 'unitary constitution with federal features'.

But, if the adoption of GST is anything to go by, this kind of structural reform will take at least a decade of negotiations, which is why it's best to start now.

Reform, if it's not done properly, will get done willy-nilly by attrition and will involve a lot of friction along the way between the Centre and the states. That's inefficient.

The case for not doing this is weak because the Constitution has been amended more than a hundred times in 75 years. And more piecemeal amendments are inevitable.

This is what happens when there is constitution-induced rigidity.

In contrast, the US Constitution has been amended only 33 times in 227 years.The Australian Constitution has been amended eight times in 116 years. The Irish Constitution has been amended 33 times. The French have made about 30 amendments in 56 years, mostly about their colonies.