Federalism and fairness
Sharing data across borders
Synoptic line: It throws light on the ongoing issue of Cauvery water disputes.
(GS paper II)
- The Cauvery dispute is once again before the Supreme Court, barely weeks after the final verdict. The Centre can be blame for the dispute going into another round of litigation. While Tamil Nadu has moved the court to initiate contempt proceedings against the Centre for not complying with the direction to frame a scheme to implement the water-sharing arrangement set out in the February 16 judgment, the Centre has sought three more months and some clarifications in the court order.
The Cauvery Water Dispute
- The use and development of Cauvery waters were regulated by agreements of 1892 and 1924 between the erstwhile princely state of Mysore and the Madras presidency. The 1924 agreement had been necessary because Madras had objected to Mysore building the Krishnarajasagar dam across the Cauvery, and the agreement facilitated it by allowing Madras to build the Mettur dam.
- A significant feature of the agreement was that it put restrictions on the extent of area that could be safely irrigated by the two states by using the Cauvery waters.
- With the reorganization of states in 1956, the situation changed a bit because the 802-km-long Cauvery river, which originates at Talacauvery in Kodagu district in Karnataka, traverses mainly through Karnataka and Tamil Nadu while its basin covers areas in Kerala (which has three of its tributaries), and Karaikal region of Pondicherry, (now Puducherry) as well.
- The basic dispute has always been about the sharing of waters in the Cauvery Basin. As per the 1892 and 1924 agreements the approximate river water allotments were as -75% to Tamil Nadu and Pondicherry, 23% to Karnataka, and the rest to Kerala .
- But as the Cauvery river is fed by seasonal monsoon rains and several tributaries. So in times of a heavy monsoon rains, this region witnesses excessive flow of water in the river and floods, but in times of insufficient rains, there is a drought like situation, and as the irrigation needs of farmers are not met, the two states indulge in the ancient ritual of blaming each other.
- Tamil Nadu, being the lower-riparian state, charges that Karnataka has built new dams and expanded the agricultural areas irrigated by the available water, thus affecting the water-supply down-stream. As a result, there has been a dispute and tension between these two states over the division of water.
- The Centre had no option but to come back to the court; the political and electoral considerations appear to have dictated the Centre’s action. It is almost as if it believes that as long as the option of buying further time is available, it need not fulfil its legal obligations.
- It is unfortunate that just before the expiry of the court’s six-week deadline, the Centre came up with a petition asking the court to clarify whether the proposed scheme should be the same as that which the Tribunal had set out in its final award in 2007, or could be at variance with it.
- There has been divergence in the opinion between Tamil Nadu and Karnataka on the proposed mechanism and its composition. While Tamil Nadu wants the ‘scheme’ envisaged by the court to mean nothing other than the Cauvery Management Board and the Cauvery Water Regulation Committee, mentioned in the Tribunal’s final award, Karnataka says there is no reference to a ‘board’ in the apex court’s order, and that the Centre could frame a scheme different from that described by the Tribunal.
- It contends that the apex court envisaged a ‘dispute resolution body’, and not the ‘management board’ favoured by the Tribunal. Against this backdrop, the Centre could have exercised discretion and come up with a scheme that would include an inter-State body to oversee the water-sharing.
- In the latest hearing, the Chief Justice of India, have observed that the term ‘scheme’ mentioned in the judgment did not refer to only a ‘board’. He also assured Tamil Nadu that the court would ensure that it was not deprived of its share of Cauvery water.
- It is an indication that it is not the nomenclature but the nature of the relief that matters. It will be wise for all parties to remember that disputes are better resolved on the basis of equity and not prolonged on expedient considerations.
Question – The Centre’s actions should not amount to undermining the finality of the highest court’s judgment, explain in the context of Cauvery water dispute.
Federalism and fairness
Synoptic line: It throws light on the issue of Indian federation need to address the concerns of States.
(GS paper II)
- The Constitution of India gives a federal structure to the Republic of India, declaring it to be a “Union of States”. The state legislature has exclusive power to make laws on certain subjects like maintaining law and order, police forces, healthcare, transport, land policies, electricity in the state, village administration, etc.
- Federalism is once again the focus of political discourse in India as the Kartanaka government recently unveiled the State flag (Nada Dhwaja), if approved by the Centre, Karnataka will be the second State to have a flag after Jammu and Kashmir.
Assessment of federalism
- In a Facebook post on “Regional Identity & Federalism”, the Karnataka Chief Minister advocated the need for States to have both financial and cultural autonomy. Also in the recent incident the Dravida Munnetra Kazhagam’s working president had written to Prime Minister and the Chief Ministers of 10 States expressing concern over the terms of reference for the 15th Finance Commission.
- The Centre’s direction to use the 2011 Census instead of the 1971 Census for population data has riled the south. As the population in these States has stabilised, the concern is that their share of tax allocation would reduce.
- While “federalism” has become the catch-all term for these concerns, there are principally three distinct yet inter-related strands to the debate –A constitutional claim for autonomy; A demand for fairer distribution of taxes; and An assertion of linguistic and cultural rights.
- India became a “union of states with a strong center” in 1947, now “from a union of states, there are evolutions into a federation of states”. This is indeed a strong claim to make as Article 1 of the Constitution declares India as a “Union of States”.
- On November 4, 1948, while moving the Draft Constitution in the Constituent Assembly, B.R. Ambedkar responded to the question as to why India is a “Union” and not a “Federation of States”- “The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation and that the federation not being the result of an agreement no State has the right to secede from it. The Federation is a Union because it is indestructible.” Hence, political scientist Alfred Stepan classified India as a “holding together” as opposed to a “coming together” federation.
- The units of Indian federation have undergone multiple transformations since 1947. This is because Article 3 of the Constitution empowers Parliament to create new States. While such a provision can be seen as giving the Union too much power, it has arguably been central to holding India together since it allows the federation to evolve and respond to sub-national aspirations.
- While its constituent units have changed, the relationship between the Union and the States has remained the same. Hence, from a constitutional perspective, it would not be accurate to say that India is moving from a union to a federation of States.
- However, after successfully “holding together” as a federation for over 70 years, the larger question is whether there is a need to reconsider the distribution of powers between the Union and the States.
- While the flexible nature of federalism under the Constitution has served India well, the continued existence of provisions such as Article 356 (President’s rule) goes against the grain of federalism. Any serious political movement around federalism should question the necessity of retaining such constitutional provisions which are vestiges of colonial rule.
Shifting in federation
- Over the last couple of decades there has been a shift in political and economic power from the Centre to the States. While some have felt that this trend would reverse after the formation of a Central government with a simple majority for the first time in 25 years, Prime Minister has sought to assuage such concerns by invoking the idea of “cooperative federalism”.
- The 14th Finance Commission, in 2015, recommended raising the share of States in the divisible pool of Central taxes from 32% to 42%. However, beyond this measure, the Centre has not inspired much confidence regarding its commitment to federalism.
- States such as Karnataka have asserted their linguistic and cultural rights in the wake of the Centre’s interventions such as a promotion of Hindi. Now, the skewed terms of reference for the 15th Finance Commission have brought the south together in making a strong case for fiscal federalism.
- The Commission has been using the 1971 Census for population data to ensure that States that have been successful in family planning are not penalised. This came in the wake of the 42nd Amendment to the Constitution which froze the distribution of Lok Sabha seats among States for 25 years, which was extended for another 25 years, in 2001. This prudent political compromise is now being tested.
- Federalism is ultimately based on trust between its various constituent units. If a set of States perceive that their progress is being penalised, the viability of such a federation comes into question. Unless the concerns regarding fairness are addressed from constitutional, financial and cultural fronts, the fault lines developing in our federation could deepen further.
Question – The concerns regarding fairness of states need to be address, as if a set of States perceive that their progress is being penalised, the viability of such a federation comes into question. Explain along with recent examples.
Sharing data across borders
Synoptic line: It throws light on the issue of India-U.S. data sharing agreement.
(GS paper II)
- Recently the U.S. President have signed the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), which will enable the U.S. government to enter into agreements with like-minded states for cross-border data sharing. This will allow law enforcement agencies from these states to directly obtain electronic data, held by communication service providers headquartered in the U.S., to combat crime.
- New Delhi, on the back of this development, will soon push for an India-U.S. data sharing agreement to serve the interests of its law enforcement and, more importantly, to make headway in the global cyber norms conversation.
- In present times, to prevent, mitigate or prosecute even a routine crime, a police officer seeks timely access to electronic data. The data are often rendered inaccessible, largely due to two reasons. One, popular service providers increasingly store electronic communications in the cloud, breaking the data into “shards” and distributing the data across different countries. While these companies offer services in India, they do not store the data locally. Two, the current U.S. law prohibits service providers from disclosing user data to foreign law enforcement agencies.
- The passing of the CLOUD Act comes at a time when the problematic data gathering practices of Cambridge Analytica have occupied public discourse. The CLOUD Act, however, symbolises the other, less explored side of the coin when user data are sought for legitimate security needs.
- India in the first half of 2017 requested data from Facebook 9,853 times, of which only 54.3% were met. Over the years, requests from Indian law enforcement to American service providers have been on a steady rise.
- Companies like Facebook, however, can directly respond only to requests for “basic subscriber information” that is, data that a user provides at the time of signing up for a service (name, email address, etc.). Indian law enforcement officials often point out that the police need access to more information on the user, such as the content of an online conversation, to further their investigations.
- The police need this information not only for traditional crimes with a cyber element, but also for more complex, transnational investigations. Cross-border crimes such as cases of online radicalisation would require agents to access data that are stored abroad.
- Currently, an officer in India would have to make a request for electronic data under the India-U.S. Mutual Legal Assistance Treaty to access content data held by a U.S. company. This process has often been criticised by the Indian police for being time consuming, sometimes even taking as long as three years, as well as being cumbersome and outdated.
- The CLOUD act has been introduced to alleviate not just the concerns of other states but also its own, as was seen in the legal battle between the U.S. government and Microsoft over access to an email. With the enactment of the CLOUD Act, an Indian officer for the purposes of an investigation will no longer have to make a request to the U.S. government but can approach the company directly.
- However, to operationalise the new data sharing arrangement through a bilateral agreement, the U.S. establishment has introduced an important caveat. The U.S. requires the foreign states to share a common commitment to the rule of law and the protection of privacy and other civil liberties. India would be considered to satisfy these requirements based on a determination by the U.S. Attorney General.
- Indian laws must provide for electronic data requests to be reviewed by a court or other independent authority. As of now, India falls short of these requirements. However, with the government looking to legislate on a new data protection law, this can soon change.
- Also among many commitments, to qualify for an executive agreement, India will need to ensure that its authorities collect, retain, use and share data as per an established procedure.
Question – India-U.S. data sharing agreement to serve the interests of its law enforcement will make headway in the global cyber norms conversation. Critically analyse.