SPECIAL TREATMENT: EXPLORING ASPECTS OF ASYMMETRICAL FEDERALISM IN INDIA AND ITS RELEVANCE BY - PALAK SHARMA
SPECIAL
TREATMENT: EXPLORING ASPECTS OF ASYMMETRICAL FEDERALISM IN INDIA AND ITS
RELEVANCE
AUTHORED
BY - PALAK SHARMA
Fourth
Year Law Student
O.P.
Jindal Global University, Sonepat
Abstract
This paper explores the concept of asymmetric
federalism within the Indian constitutional framework, examining both vertical
and horizontal dimensions. Vertical asymmetry is demonstrated through articles
such as 3, 352, and 356, which grant central authorities substantial power over
states, while horizontal asymmetry is illustrated by disparities in the
distribution of power and resources among different states and union
territories. The paper delves into specific provisions, including Articles 371
and 370, which grant special status to certain states like Jammu & Kashmir and the
northeastern states, highlighting how such asymmetry accommodates regional
diversity. The judiciary’s role in balancing asymmetry and upholding the
Constitution’s core values is also critically analyzed, particularly in
landmark cases involving the reorganization of Jammu & Kashmir and the
autonomy of Union Territories. In conclusion, while asymmetric federalism is
crucial to managing India’s diversity, it requires careful implementation to
prevent undermining the fundamental democratic principles of equality and
justice.
Keywords: Asymmetric
Federalism, Vertical Asymmetry, Horizontal Asymmetry, Indian Constitution,
Special Status, Judiciary, Article 370, Article 371, Jammu & Kashmir, Union
Territories, Federalism, Supreme Court, Diversity, Autonomy
INTRODUCTION
“According to KC Wheare, the father of federal
theories, federalism is the method of dividing the powers so that the central
and regional governments are each within the sphere co-ordinate and
independent.”[1]This
demonstrates that the power division shall be equal in dual government. They
co-ordinate but are autonomous independently. A constitution may incorporate
federal features along with unitary features. This is what makes India a quasi-federal
country. The phrase “Federation of India” was first used in “Government of
India Act of 1835”[2].
But following the adoption of the constitution of India, the supreme court also
noted that India is a loosely federalized nation. In contrast to American
federation this is founded on the principle of Indestructible union of
indestructible states whereas India is indestructible union of destructible
states. This gives a centralized aspect of federal nature in India.
The
other side of our constitution has highlighted asymmetrical federalism. It is a
federation is which powers are divided among its member states asymmetrically.
There happens to be autonomy nature of enjoyment amongst various states despite
having the same constitutional status. India has several constituents with
desperate demands because of racial, linguistic, cultural or religious
distinctions and that is why asymmetric federalism system is employed. This
asymmetry is often referred to as special treatment being provided to various
states. This widely occurs at vertical as well as horizontal arrangements.
VERTICAL
ASYMMETRY
1.
“ARTICLE
3: The power of the Parliament to alter state and union territory
boundaries is discussed in this article. It lays out how to go about doing
that. This demonstrates the increased power of the central government and
establishes India as an indestructible union of destructible states. Note that
the state cannot change the same aspect on its own. Again, the governor of such
a state's view is considered, but it is not legally binding”.[3]
2.
“ARTICLE
352 AND 356: These articles discuss imposing the president's power in a
state and proclamating a state of emergency. These extraordinary constitutional
measures aim to resolve crises or malfunctions in the constitutional mechanism.”[4]
The state is governed by the federal government, and the state legislative
assembly may be suspended or abolished... such powers are subject to restrictions
which were held in “SR Bommai v Union of India.”[5]
It was also stated that such presidential rule comes under the purview of
judicial review of it being mala fide.
For example, Central's too centralized
management of the COVID-19 emergency reaction and subsequent vaccination
efforts, which are currently adhering to norms based on recommendations by the
Apex Court.
3.
“ARTICLE
258- It grants the parliament the authority to pass laws on subjects
that are not expressly the province of the states or that are under the joint
authority of the union and the states. These residual powers ensure that the
central government can pass laws on matters that were not taken into account
when the constitution was written or that benefit the interests of the nation
as a whole.”[6]
4.
FUNDS: “The
Centre pays 90% of the cash necessary under a centrally sponsored plan for
special category states, compared to 60% for regular category states, with the
remaining amounts contributed by state governments.”[7]
HORIZONTAL
SYMMETRY:
This asymmetry takes place amongst
states. Following are taken into account:
1. “SCHEDULE 4
The provisions of the Indian
Constitution pertaining to the distribution of Rajya Sabha seats among States
and Union Territories are found in the fourth Schedule”[8] In the
council of states, Uttar Pradesh, for example, has 31 seats, whereas Arunachal
Pradesh just has one. The 1971 census served as a major basis for
the Rajya Sabha seat distribution as outlined in schedule 4. When population dynamics shift over time,
this may result in disparities in representation. This means that both an
ambiguous and an asymmetric one exist. Because of this, states with slower
population growth may be overrepresented while those with faster growth may be
underrepresented. The static allotment does not take shifting demographics into
consideration.
As a result, it's important to evaluate and modify the Rajya Sabha seat
distribution from time to time to make sure it more accurately reflects the
political and demographic realities of the present.
2.
“Part
VIII: This includes provisions pertaining to Union territories, whose
federal structures differ from those of the states.”[9]
Although there may be a number of reasons why this structure is required, it
does call into question the democratic concepts of representation. While some
UTs have legislatures and enjoy more autonomy than others, some do not.
For instance:
·
Delhi, the National Capital Territory, is
governed by a separate legislature. The Delhi Legislative Assembly, the Indian
legislature, and the Indian government both provide the special status. With
the exception of land, police, and public order, Delhi has the authority to
enact laws on any topic on the state list. “The
Indian Constitution's 69th amendment, which was passed in 1991, made this special
arrangement possible. However, this does not imply that the lieutenant
governor is the only person with authority in this regard and that the
government cannot act.”[10]
The next case was held in the same manner:
“Government
of NCT of Delhi v Union of India:
In 2015, Najeer Jung, the LT of Delhi, declared that he was not
obligated to provide the CMO with any information pertaining to law
enforcement, land, or public order. The Home Ministry backed this as well,
stating that the state Anti Corruption Bureau Police Station in Delhi lacks the
authority to look into the aforementioned issue involving central government
workers. The Indian Supreme Court ruled that the Lieutenant Governor of the
National Capital Territory of Delhi is obligated to seek guidance and
assistance from the elected Delhi government. In ruling this, the Court noted
that true power in a democracy must go to the elected representatives and that
the Lieutenant Governor cannot meddle in every decision made by the Delhi
Government.”[11]
“Recently, the promulgation of an ordinance to amend the Government of National Capital Territory of
Delhi Act(NCTD) 1991 by Union government has raised concerns about federalism,
democracy, bureaucratic accountability, executive law making and judicial review.
As per the Delhi Ordinance Bill, it proposes that actions like suspensions and
inquiries of the national capital's officials would be under the control of the
center.
The Bill also gives the L-G the
authority to act alone in a number of areas, including those that the National
Capital Civil Services Authority recommends and the calling, proroguing, and
dissolution of the Delhi Legislative Assembly. The National Capital Civil
Services authority, which is made up of the Delhi chief secretary, chief minister,
and principal home secretary, is established under the bill. The authority will
advise the Lieutenant Governor (L-G) on official postings and transfers, as
well as disciplinary actions. This action overturned the Supreme Court ruling
that acknowledged Delhi's elected government's legislative and executive
authority over services.”[12]
Such ordinance threatens the
independence of the court in addition to being inconsistent with the
asymmetrical principle. The National Capital Civil Service Authority's establishment
challenges the accepted standards of bureaucratic accountability by granting
appointed bureaucrats the power to overturn an elected Chief Minister. The
democratic values are undermined by this concentration of power in the hands of
bureaucrats, which also lessens the authority of elected officials. By
restricting the authority and capacity for decision-making of Delhi's elected
government, it goes against federalism. By instituting a system that allows
Union-appointed officials and the Lieutenant Governor to override the decisions
made by the Chief Minister and the elected government, it weakens the federal
structure. So encouraging vertical asymmetries in federalism. By giving
unelected individuals considerable influence over elected representatives, it
threatens democracy by undermining representative government principles and
popular will..
This
would promote horizontal asymmetry in federal sense because administration of
all other union territories is at a very different stance from that of Delhi.
·
“Pondicherry (Pondicherry, Mahe, Yanam and
Karaikal): It is composed of the four aforementioned areas and has its own legislative.
It has a council of ministers and a legislative assembly. Pondicherry, like a
full-fledged state, also has the authority to enact laws on a variety of
matters.”[13]Similar
to the other states of India, the aforementioned Union Territories with their
own legislatures have some autonomy in enacting laws and running their
respective governments. The President of India has direct administration over
other Union territories, which are governed by the Central Government. This is
an issue of dual imbalance. One, although though Chandigarh is the capital of
Punjab and Haryana, the union territories are still managed by the federal
government. The center now has more power as a result. Unlike Delhi NCT and Pondicherry,
they do not have a legislative assembly of their own. This results in an
additional layer of asymmetry whereby the other UTs are positioned inferiorly
or at a disadvantage..
3.
“SCHEDULE
5 AND SCHEDULE 6: The Constitution's fifth and sixth schedules provide for specific
provisions for governance in regions inhabited by scheduled tribes or
indigenous populations.
The union administration, represented by the governor,
has a little more authority to act in the interest of scheduled tribes'
socioeconomic development under the fifth schedule, which is in effect in
majority tribal districts outside of the northeast. A tribe’s advisory council
must be established in every state with a scheduled region in order to provide
advice on issues relating to the advancement and welfare of scheduled tribes,
as well as any other subjects the governor may refer them to. The
governor has the authority to impose regulations on the sale of land by
scheduled tribes and the activities of money lenders who provide loans to
scheduled tribe members, as well as to declare that certain acts of Parliament
or the applicable state legislature are not to be applied in scheduled areas. In sixth schedule areas of north east more
extensive power of self-governance were granted to autonomous district
councils.
§ Fifth
schedule (tribal within Indian mainland) Maharashtra, Gujarat, Rajasthan,
Himachal Pradesh, Jharkhand, Orissa, Madhya Pradesh, Chhattisgarh, Andhra
Pradesh, Telangana. Sixth Schedule (Tribal in the North East) (Assam –
Meghalaya – Tripura and Mizoram).”[14]
One
criticism of Schedule 6 is that it only applies to some tribal territories,
leaving out other tribal places around the nation, which might result in
differences in the protection and self-governance of indigenous groups. This
independence might make progress more difficult. The well-being of tribal
groups depends on the careful maintenance of the right balance between autonomy
and development. The Honorable Supreme Court acknowledged that tribal areas
created under the Sixth Schedule are governed "not by the relevant
provisions of the Constitution which apply to other constituent States of the
Union of India but by the provisions contained in the Sixth Schedule" in
the case of “Ewanlangki-E-Rymbai v.
Jaintia Hills District Council”[15]The
Court acknowledged that the Schedule was not separate from the Indian
Constitution, even if it did refer to it as a self-contained law. The previous
year, in “Pu Myllai Hlychho v. State
of Mizoram”[16],
the appellants had argued that the legislative background of the Sixth Schedule
and the consideration that had gone into its creation acted as a
"constitution within the constitution.". The Honorable Supreme Court
dismissed this claim, ruling that legislative history was insufficient evidence
to support a finding that the Sixth Schedule may be visually separated from the
rest of the Constitution. This indicates that the legal pluralism argument was
rejected in spite of the varied legislative authorities. Rather, it was
discovered that the Sixth Schedule was a component of the Constitution. Therefore,
it has been decided that the Indian Constitution grants states and other
political areas more latitude in enacting laws, and that this latitude at most
has the backing of the judiciary and at worst has the standing of an
established characteristic of the text.
“A five-judge panel of the Supreme
Court of India invalidated the Governmental Order (GO) issued by the erstwhile united
state of Andhra Pradesh in January 2000 in the case of Chebrolu Leela Prasad Rao v. State of Andhra Pradesh. The
contested GO granted applicants from Scheduled Tribes (ST) 100% quota for
teaching positions in Andhra Pradesh and Telangana's Scheduled Areas. The Court
held unanimously that the fundamental rights outlined in Part III of the Indian
Constitution apply to the governor's authority under the Fifth Schedule of the
Indian Constitution. In light of these violations of Articles 14, 15(1), and 16
of the Constitution, it was decided that the 100% reserve was unconstitutional.”[17] The
judgment is legally unsound. "The granting of differential rights to
certain federal sub-units, and the recognition thereby imparted for distinct,
territorially concentrated ethnic or national groups is Louise Tillin's
definition of asymmetrical federalism.”[18] The
idea of asymmetrical federalism has been woven into the scheme of the Indian
Constitution.
In
evaluating the G.O. in this case, the Court follows the fundamental principle
of equality with regard to reservations as outlined in Articles 14 through 16
of the Constitution and decisions like ‘Indra Sawhney’[19]
and ‘N.M. Thomas’[20].
Asymmetrical clauses such as the Fifth Schedule permit the implementation of
unique governance measures that deviate from the traditional notions of
equality.
4. “ARTICLE 371 TO 371 J: The "special
provisions" that apply to certain States primarily give the Governors the
authority to carry out certain duties. These states include Goa, Karnataka,
Assam, Mizoram, Andhra Pradesh, Nagaland, Sikkim, Maharashtra, Gujarat, Manipur,
Arunachal Pradesh, and Goa.”[21]All of them have one thing
in common: whenever governors are required to carry out particular duties,
their prerogative to act independently supersedes the appropriate Council of
Ministers' consultation procedure.
According to Article 371 of the Indian Constitution,
the Governor of Maharashtra is tasked with creating distinct development boards
for Vidarbha, Marathwada, and the entire State, while the Governor of Gujarat
is tasked with doing the same for Saurashtra, Kutch, and the remainder of
Gujarat.
“A 371 A gives the governor of Nagaland
special responsibility for maintaining law and order in the state for as long
as, in his opinion, internal disturbances in the Naga Hills – Tuesang area
immediately prior to the formation of that state continue.”[22]
Similarly, the assent of the respective legislature is required in Nagaland and
Mizoram if the law pertains to their religious and social practises, etc. The
North East states are distinct from the rest of India, which explains why they
are asymmetrical. India and these northeastern states are connected by a narrow
stretch of land known as Siliguri.
In contrast to the rest of India, these
states were not under direct British rule during the colonial era, and the
center's relationship with them has always been less institutionalized since
independence. The Centre has traditionally based its policies specifically on
the border ties of these states with its bordering nations, including China,
Burma, and Bangladesh. The fact that these states have such small populations
overall is another factor. “Dr. B.R.
Ambedkar advocated this structure as well, arguing that their distinct customs
and traditions called for a particular kind of plan to preserve their way of
life.”[23]
The foundation
of asymmetrical federalism for the North-East is the preservation of distinct
cultures within a democratic framework, in contrast to Article 370, which was
perceived as a transitory measure. However, the Naga political groups and the
Indian government engaged in deadly confrontation as a result of the insurgency
and their quest for self-determination. “However,
Sonam Wangchuk of Ladakh, which regards itself as a tribal area, requested
Sixth Schedule Protection in order to safeguard the distinctive customs and way
of life of the Ladakhi people.”[24] The
current state of affairs in Ladakh serves as a stark reminder of how difficult
it is to have India's borderland minority recognized politically. The future of
the area is still unclear, particularly in light of the geopolitical tensions
between China and India, and the younger Ladakhi population is becoming more
critical.
5. ARTICLE 370
“Article 370 of the Indian Constitution gave the state of Jammu and
Kashmir (J&K) in India a temporary special status. Three domains related to
the state of Jammu and Kashmir were given over to the Indian government, as
stated in the Instrument of Accession of 1947: communications, defense, and
foreign affairs.”[25]
The President may choose whether sections of the Indian Constitution, with or
without change, apply to Jammu and Kashmir under Article 370. In addition, the
Indian Parliament need the consent of the Jammu & Kashmir administration
before passing legislation in the state, with the exception of those pertaining
to communications, defence, foreign affairs, and finance. Legal plurality
results from this.
“One may argue that because Article 370 restricts how the state can
implement constitutional provisions, it undermines some of the fundamental
elements of the document. However, the term "basic features" refers
to overarching concepts found throughout the Constitution rather than
particular articles, such as democracy, republicanism, and secularism. As a
result, Article 370 preserves the essential elements of the Constitution while
limiting the application of some of its provisions.”[26]
Chief Justice of India D.Y.
Chandrachud said :
"Article 35A essentially
stripped non-residents of their rights and granted special rights and
privileges to permanent residents (including those who were hereditary State
subjects as in 1927, when J&K was a princely state before joining the
Indian Dominion in 1947)."[27]
These rights included the freedom to own property, the right to equal job
opportunities with the state, and the freedom to live and work in Jammu and
Kashmir.
J and K enjoyed autonomy up to abrogation, including having their own
constitutions, although other union territories or states with special status
did not receive this privilege. In terms of states with special and non-special
status, there existed an imbalance.
Abrogation of Article 370 and Article 35 A
- “On August 5, 2019, the Indian
government, in especially the ruling Bharatiya Janata Party (BJP) and
Prime Minister Narendra Modi, approved this historic decision.
Accordingly, the Constitution (Application to Jammu & Kashmir) Order,
2019, was issued by the President to supersede the 1954 order related to
Article 370.
- The Jammu and Kashmir
(Reorganisation) Act 2019 was also passed, granting Ladakh Union Territory
status without a Legislative Assembly and creating a Union territory with
a Legislative Assembly for Jammu & Kashmir.”[28]
Contentions: There is a contention that was
brought up in the case of “Mohd. Akbar Lone v. Union of India,
(writ civil)”[29].The
Jammu and Kashmir (reorganization) Act, 2019 was contended to be
constitutionally invalid which being ultra vires with article there was a
retrogression of state into a union territory whereas principle of non-
retrogression is supported in “Navtej Johar v. Union of india”[30].
The state should not take measures or steps that deliberately lead to
retrogression on the enjoyment of rights either under constitution or
otherwise. In my opinion, this contention is valid being said that even if
centre has power over demarcation of states and union territory but it shall
not use such power to degrade the status of the state to union territory. This
would result into discretionary asymmetrical federalism in favor of center.
Role of judiciary:
As time has gone on, the Court has not
intervened to defend Jammu & Kashmir's distinct constitutional settlement
from political interference, but rather has assisted the President in
strengthening his position as defender of the spirit of autonomy. That is, it
didn’t let asymmetrical federalism to exceed at discretionary level which can
be understood by the case laws follows:
1.
The bench decided in “Prem
Nath Kual V state of Jammu and Kashmir AIR 1959 SC 749”[31] that the "final
approval by the said Constituent Assembly is made conditional on the
continuance of the exercise of powers conferred on Parliament and the President
by the relevant temporary provisions of Article 370(1)."
2.
“In Sampat Prakash v. State of Jammu
and Kashmir, AIR 1970 SC 1118”[32] the Supreme Court
rejected the argument that ‘modifications made by the President in exercise of
powers under the Article, subsequent to the enforcement of the Constitution of
the State, would be without the authority of law.’
3. “The petitioner in Mohd. Maqbool Damnoo v. State of Jammu &
Kashmir”[33],
(1972) 1 SCC 536, contested the constitutionality of the
Sardar-i-riyasat's replacement with a governor. The Supreme Court ruled that
the Governor, as the Sardar-iriyasat's heir, has the authority to approve any changes
made to Article 370 with the support of the State Government.
As a result, the court's
intervention increased the center's authority while denying Jammu and Kashmir
any discretionary autonomy because of its unique position.
CONCLUSION
The
whole research study has examined asymmetric federalism in relation to India
from both a vertical and horizontal perspective. Furthermore, it is noted that
certain states do need special status, but it is also clear that granting
special status resulted in the other states being viewed as inferior. In India,
a quasi-asymmetrical federal nation, the judiciary stepped in to meddle in
power dynamics whenever discretionary authority was utilized. In order to
accommodate great variety, asymmetrical federalism is required, but it must
preserve the fundamental elements of the constitution. Although prejudice still
exists in India, it will be more difficult to carry out as long as the
fundamental framework remains unaltered and an independent judiciary is
available to intervene.
[1] Chhavi Priya, ‘Centre State Relations’ (Legal Service
India) <Centre State Relations
(legalserviceindia.com)> accessed 27 October 2023
[2] The Government of India Act 1835
[3] The Constitution of India, a3
[4] The Constitution of India, a352
The
Constitution of India, a356
[6] The Constitution of India, a258
[7] M. Lakshmikanth, ‘The Indian federal
structure is largely symmetric albeit with some asymmetric features. Elaborate.
Do you think the Constitutional Asymmetry in Indian Federalism has been able to
accommodate diversity in India?’ (Insights IAS, 8 January 2022) The Indian
federal structure is largely symmetric albeit with some asymmetric features.
Elaborate. Do you think the Constitutional Asymmetry in Indian Federalism has
been able to accommodate diversity in India? - INSIGHTSIAS
(insightsonindia.com)> accessed 27 October 2023
[8] The Constitution of India,
Schedule 4
[9] The Constitution of India, Part
VIII
[10] The Constitution (Sixty-ninth
Amendment) Act 1991
[11] Government of NCT of Delhi v.
Union of India (2018) 8 SCC 501
[12] Government of National Capital
Territory of Delhi (NCTD) 1991
Asymmetric
Federalism: Examining the Impact of the Delhi Ordinance’ (Civils daily)
accessed 27 October 2023
[14] The Constitution of India,
schedule 5
The
Constitution of India, schedule 6
[17] Chebrolu Leela Prasad Rao v. State of Andhra Pradesh
,2020 SCC Online SC 383
[18] https://lawandotherthings.com/asymmetrical-federalism-and-the-100-reservation-judgment/>
accessed 27 October 2023
[19] Indra Sawhney v. Union of India
AIR 1993 SC 477
[20] State of Kerela v. N.M. Thomas
1976 SCR (1) 906
[21] The Constitution of India, a371-a371 j
[22] Asymmetric Federalism in India: With
special Reference to North East States and Jammu and Kashmir’ (Law Bhoomi, 5
April 2021) accessed 27 October 2023
[23] Asymmetric Federalism in India: With
special Reference to North East States and Jammu and Kashmir’ (Law Bhoomi, 5
April 2021) accessed 27 October 2023
Dewangi
Sharma, ‘Asymmetric Federalism and Negotiated Sovereignty in Nagaland’ (2021)
Vol XVII accessed 27 October 2023
[24] Mabel Gergan, ‘Tribal Territoriality,
Asymmetric Federalism, and Majoritarianism in India’s Northern Himalayan
Borderlands’ (Society for Cultural Anthropology, 16 March 2021)
accessed 27 October 2023
[25] The Constitution of India a370
[26] Avani Agarwal, ‘Defending Special Status
for Jammu and Kashmir – Is the Constitution the Bane or the Boon?’ (The RMLNLU
Law Review Blog, 22 February 2019) accessed 27 October 2023
[27] The Constitution of India, a35 A
[28] The Jammu and Kashmir (Reorganisation)
Act 2019
[29] Mohd. Akbar Lone v. Union of
India Writ Petition (civil)
[30] Navtej Johar v. Union of India
2018 INSC 790
[31] Prem Nath Kaul v. State of Jammu
and Kashmir AIR 1959 SC 749
[32] Sampat Prakash v. State of Jammu
and Kashmir AIR 1970 SC 1118
[33] Mohd. Maqbool Damnoo v. State of
Jammu and Kashmir (1972) 1 SCC 536