The Constitution's “centralising drift”

Gautam Bhatia’s The Indian Constitution: A Conversation with Power traces the history of the Constitution, focusing, in particular, on “the contest between the centralising and federalising approaches.” He argues that over the seven decades of the working of the Constitution, there has been a “centralising drift”—a “gradual drift towards the entrenching of its first set of characteristics: unitary, concentrated, representative, electoral, homogenous and Statist power, at the cost of federal, distributed, direct, guarantor, plural and individual power.” This excerpt from the book, published by Harper Collins India, examines two judgements to illustrate this argument—one regarding a dispute between Kerala and Tamil Nadu over the Mullaperiyar dam, and one concerning the Supreme Court upholding the constitutional validity of AFSPA in Naga People’s Movement of Human Rights vs Union of India.

The Mullaperiyar dam is the site of a long-running dispute between the states of Kerala and Tamil Nadu. It is situated within the state of Kerala, but electricity from the dam is generated and used by the state of Tamil Nadu. In 2006, the dispute between the two states came to a head before the Supreme Court, when Kerala’s refusal to allow the raising of the dam’s water level from 136 feet to 142 feet—following a recommendation of the Central Water Commission (a body under the aegis of the Union water ministry)—was at issue.

The state of Tamil Nadu relied upon an 1886 agreement between the state of Travancore (Kerala’s predecessor state) and the then-colonial government, read alongside Section 108 of the States Reorganisation Act of 1956, which had created the state of Kerala. Section 108—put simply—stipulated that the agreements between predecessor states and the central government pertaining to “irrigation, power, or multi-purpose projects” would remain in force by default. The state of Kerala argued that Section 108 was unconstitutional to the extent that it deprived state legislatures from legislating on water, which fell under List II of Schedule VII, and therefore, came within state legislative competence.

The question before the Supreme Court was this: when the Union legislature exercised its powers to create new states and reorganise existing state boundaries under Article 3 of the Constitution, to what extent—if any—could it stipulate or constrain future legislative action by those new and modified states? Under Article 4 of the Constitution, a state reorganisation law under Article 3 could also contain “such supplemental, incidental, and consequential provisions … as Parliament may deem necessary” and no such law would be deemed to be an “amendment” of the Constitution under Article 368.