The focus of this paper is to examine whether India is a case of asymmetrical
federalism. It enquires into the asymmetrical features of Indian federalism and
assess its distribution among states. The paper aims to do so by first defining
the term and, at the same time, looking at other countries who have successfully
managed to govern itself using the same method. Then the focus is shifted to
India, specifically at Jammu and Kashmir which has been bestowed special powers
under Article 370 of the Constitution[1].
After Jammu and Kashmir, the paper looks at north-eastern states as an example
of asymmetry and enquires into the purpose of providing these specific states
with a special status. Lastly, the asymmetry on a sub state level is examined by
taking Union Territories as a case study with Delhi and Pondicherry in specific
focus.
What does asymmetrical federalism mean?
The term asymmetrical federalism refers to a flexible type of union of states
which allows the government to cut different deals with different states in
special matters pertaining to them[2]. This method allows the government to
grant special status to some units providing them with special powers not
enjoyed by other states. Asymmetry involves providing greater autonomy to some
states when compared with others. It permits particular states to have greater
executive, legislative, and at times, judicial powers than other states.
Theoretical literature in the subject differentiates between two types of
asymmetries:
de facto and de jure asymmetry. The former refers to asymmetry
between different units in terms of wealth, culture, language etc… As a result,
these states differ in terms of autonomy and representation in the union. The
latter refers to providing specific units with different amount of powers. It is
a deliberately done as a part of the constitutional design[3]. This paper will
primarily focus on de jure asymmetrical features of the Indian federalism.
An asymmetrical setup can be effective when the needs of state are diverse
religiously, culturally and/or ethnically. In such a case, asymmetrical
federalism caters to the needs of particular communities by giving them special
status. Asymmetry is established through legal institutional arrangements. For
instance, in India these arrangements have a constitutional basis whereas in
countries like Indonesia, China and Philippines, it is based on legislative
arrangements[4]. Asymmetrical federalism is applicable to all states, federal,
decentralized or unitary.
But the type of state should be considered while deciding upon which
asymmetrical arrangements are to be made.[5] Canada can be taken as an example
in order to demonstrate better how asymmetrical federalism functions in real
life. A new healthcare deal has been signed which permits a bilateral deal
between Quebec and Canada, thus recognizing Quebec’s definite and separate
status from the federation of Canada[6]. Likewise, Indian constitution allows
some border states in the North-West and North-East region (i.e., Jammu and
Kashmir, Nagaland and Mizoram) to exercise constitutional asymmetries.
Is Jammu and Kashmir an example of asymmetry?
The state of Jammu and Kashmir was added to the union of India with a special
set of provisions. Jammu and Kashmir have its own constitution, adopted in 1957,
which is distinct and separate from the Constitution of India. Article 370 (bii)[7] restricts
the powers of Parliament to make laws for Jammu and Kashmir in specific matters
pertaining to foreign affairs and defence and communications. The assent of
President of India along with the state government is necessary in order for
Parliament to make a law on subjects in union and concurrent lists. This is in
stark contrast to the rest of India where Center has residuary power along with
a greater set of responsibilities.
These special powers come due to the unique features of Jammu and Kashmir. It
has a varied set of population with the majority population in the Kashmir
valley being Muslim. The fact that it bordered the new state of Pakistan was
also of significance[8].
Are small states in North East evidence of asymmetry?
Likewise, the assent of the respective legislature is required in Nagaland and
Mizoram, if the law pertains to their religious and social practices,
traditional procedures, control of civil and criminal justice impacting these
traditional laws and ownership and transfer of resources[9]. Article 371
A[10] provides the governor of Nagaland with:
“some special responsibility with respect to law and order in the state of
Nagaland for so long as in his opinion internal disturbances occurring in the
Naga Hills-Tuensang area immediately before the formation of that state
continue….â€
Tribal areas in the states of Assam, Meghalaya and Tripura have been bestowed
with special constitutional arrangements under the Sixth Schedule[11]. Special
powers have also been provided by the constitution to the six states divided out
of Assam since independence. The status of Assam used to be of an ‘associate
state’ at the time of its accession to India.
The state was then integrated into the union of India with a special set of
provisions and powers. The purpose of these special provisions is to bestow
preferential treatment to these specific states in terms of government
grants/loans[12]. The reason North East states are asymmetrical is because these
states are unique to the rest of the India. A little strip of land called
Siliguri connects these north east states with India.
These states were not directly controlled by the British in the colonial period
and relationship of center with these states has always been less
institutionalised, after independence, as compared to the rest of India[13].
Policies drawn by the Center have specific to these states have always been
influenced by the border relations of its neighbouring countries i.e. China,
Burma and Bangladesh[14]. Another reason is that the population of these states
in comparison to others is very sparse.
Watt describes the status of these states as peripheral which are those units
which ‘‘
normally . . . involve relatively small units in terms of population’’.
He adds: ‘‘these relationships are quite distinct from those of the main body of
constituent units within the major political entity[15]’’ Hence, the
constitution does provide special powers to tribal areas, significantly in the
North East.
Union Territories: sub state level asymmetry?
The asymmetries stated above are all state level. There are asymmetries present
in the Indian constitution at the sub state level in the form of Union
Territories. There are seven union territories created because they were too
small to become independent states or they could not be joined with their
neighbouring countries on the account of cultural differences. Pondicherry and
Delhi are two Union Territories with a unique common feature that members in the
respective legislatures are directly elected by the people.
The legislature of Pondicherry has members which are partly elected and partly
nominated. Both the Union Territories are headed by a lieutenant governor
elected by the union government to carry out executive functions. Along with a
lieutenant governor, chief minister of the respective government is answerable
to his/her legislature. Delhi also has the benefit of concurrent jurisdiction
which essentially means that if there is a clash between a law made by it and
the Parliament, the latter will win. The government of Pondicherry has the
jurisdiction over land, police and civil services. In the case of Delhi, these
subjects are under the jurisdiction of the union government[16].
Conclusion
This paper has attempted to bring out the asymmetrical features in the Indian
federalism. To sum up, India is filled with examples of de jure and de
facto asymmetries. It is important to mention that there is a distinction
between political asymmetries which pertains to differences between federal
units demographically/geographically and the asymmetries conferred by the
Constitution to regional states in terms of legislative and executive powers.
India is an example for both of these asymmetries.
Rajya Sabha can be taken as an example of political asymmetry in India where the
states are represented by their population. States don’t have an equal standing
like the system followed in the United States. As a result, state with a big
population like Uttar Pradesh has 31 seats whereas states with lesser population
like Goa, Mizoram and Manipur have just 1 seat each14. This creates an asymmetry
in the political sphere of India.
India’s asymmetrical features are evident from the examples of states of Jammu
and Kashmir and Mizoram, Nagaland along with other north eastern states provided
by the paper. Sub state asymmetries provided for by the Sixth Schedule of the
Constitution[17] in the form of Union Territories also points at the same
direction. Asymmetrical features are also provided in the Fifth
Schedule[18] which specifically pertains to tribal areas in demographically
diverse states. Last point that should be acknowledged is that Article 1 of the
Constitution[19] talks about the federal union of states and territories, that
is India. Territorial and ethnic autonomies also are a part of this union owing
to their diverse cultural, tribal and religious features. Due to the above
stated reasons, India, ‘a union of states’, is an example of asymmetrical
federalism.
End-Notes:
- The Constitution of India, 1950, Art. 370
- The Royal Society of Canada, "Who's Afraid of Asymmetrical Federalism?"
Internet http:// www.rsc.ca/print:php?long_id=i & page_id=i96, accessed on
10/9/2019
- Louise Tillin. "United in Diversity? Asymmetry in Indian Federalism."
Publius 37, no. 1 (2007): 45-67. http://www.jstor.org/stable/4624781.
- Forum, Melbourne. 2018. "Asymmetric Territorial Arrangements in
Decentralized Systems". Constitutional INSIGHTS No. 3, no. 3. https://www.idea.int/sites/default/files/publications/asymmetric-territorial-arrangements-in-decentralized-systems.pdf.
- Kwa, E. 2017. "Devolution in Papua New Guinea". From Big Bang to
Incrementalism: Choices and Challenges in Constitution Building. https://law.unimelb.edu.au/__data/assets/pdf_
file/0011/2536544/PNG-Kwa.pdf.
- Funk, Alixandra. 2009. "Asymmetrical Federalism: A Stabilizing Or
Destabilizing Factor In The Multinational Federation? A Comparative Stud of
Asymmetrical Federalism In Canada And Spain". Centre International De
Formation Europeenne. https://www.ie-ei.eu/IE-EI/Ressources/file/memoires/2010/Funk.pdf.
- The Constitution of India, Art 370 (bii)
- Rao, Govinda, and Nirvikar Singh. 2004. "Asymmetric Federalism In
India". UC Santa Cruz International Economics Working Paper, no. 04-08.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=537782.
- Kham Khan, Suan Hausing. 2014. "Asymmetric Federalism And The Question
Of Democratic Justice In Northeast India". India Review 13:2: 87-111.
doi:10.1080/14736489.2014.904151.
- The Constitution of India, 1950, Art. 371 A
- Dasgupta, Jyotirindra. 1997. "Authenticity and Autonomy: Insurgence and
Institutional Development In India". Journal of Asian Studies 56(2):
345-370.
- Arora, Balveer. 1995. "Adapting Federalism To India: Multilevel And
Asymmetrical Innovations. In Multiple Identities In A Single State: Indian
Federalism In Comparative Perspective". Konark Publishers Pvt Ltd.
- Manor, James. 1996. "‘Ethnicity’ And Politics In India, Center-State
Relations In The Success Of India's Democracy". Cambridge: Cambridge
University Press 72(3): 459-475.
- Baruah, Sanjib. 1999. “India Against Itself: Assam and the Politics of
Nationalityâ€. Philadelphia: University of Pennsylvania Press
- Watts, Ronald L. 1999. â€The theoretical and practical implications of
asymmetrical federalism, In Accommodating diversity: Asymmetry in federal
states, ed. R Agranoff. Baden-Baden: Nomos Verlagsgesellschaft.
- SAXENA, REKHA. "Is India a Case of Asymmetrical Federalism?" Economic
and Political Weekly 47, no. 2 (2012): 70-75. http://www.jstor.org/stable/23065612.
- The Constitution of India, 1950, Schedule IV
- The Constitution of India, 1950, Schedule V
- The Constitution of India, 1950, Art. 1
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