India: From Political Federalism and Fiscal Centralization to Greater Subnational Autonomy
The adoption of a federal system in independent India was essentially a foregone conclusion. The Government of India Act of 1935 created a decentralized system of governance for the units of colonial India that were directly ruled, and the incorporation o
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India: From Political Federalism and Fiscal Centralization to Greater Subnational Autonomy Sunita Parikh
10.1 Overview The historical foundations of Indian federalism derive from a disparate range of factors. First, during British colonial rule, control was divided between direct rule of British provinces and indirect rule of Indian Princely States. The British provinces retained considerable political and economic autonomy, and although the Princely States were in practice subject to British authority, they were politically quite diverse. The creation of Pakistan and the departure of the Muslim League from Indian politics removed the most powerful voice for a weak central government and autonomous sub-national units, and the dominant Indian National Congress strongly preferred a centralized institutional structure. But the integration of the Princely States into independent India, the legacy of provincial discretion, and the adoption of the framework of the Government of India Act of 1935 all contributed to the development of constitutional provisions for a federal system. Within the federal framework, however, there were historical precedents and institutional mechanisms that provided opportunities for centralizing power in the national government, especially in the judicial and legislative arenas. Despite the lack of an indigenous apex court until 1937 – appeals from the provincial High Courts were heard by the Privy Council in London – the judiciary had been integrated for nearly a century. After the establishment of India as a Crown Colony of the British Empire in 1858, the East India Company courts and the British Crown courts were unified into a single hierarchy in each British province. The Government of India Act introduced an apex court, the Federal Court of India,
S. Parikh () Department of Political Science, Washington University in St. Louis, St. Louis, MO, USA e-mail: [email protected] D. Halberstam and M. Reimann (eds.), Federalism and Legal Unification, Ius Gentium: Comparative Perspectives on Law and Justice 28, DOI 10.1007/978-94-007-7398-1__10, © Springer ScienceCBusiness Media Dordrecht 2014
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to hear disputes among provinces and the Princely States, and the new Constitution of India essentially transformed this court into the Supreme Court of India, retaining its justices, its conditions of judicial appointment, and its jurisdictions. Just as unification of the judiciary was achieved by wholesale adoption of the colonial judicial structure, the harmonization of Indian law has been aided by the continuation of British common law and the Penal and Civil Codes introduced in the nineteenth and early twentieth centuries, as well as by the constitutional primacy of national legislation. Yet, an important exception to this centralization of judicial and legislative authority can be found in policies that recognize ethnic diversity. For example, although most religious communities are subject to secular common law, Indian Muslims are still governed by Islamic Law (sharia) in ar
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