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….”

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:

1. The Constitution of India, 1950, Art. 370
2. 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
3. Louise Tillin. "United in Diversity? Asymmetry in Indian Federalism." Publius 37, no. 1 (2007): 45-67. http://www.jstor.org/stable/4624781.
4. 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.
5. 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.
6. 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.
7. The Constitution of India, Art 370 (bii)
8. 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.
9. 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.
10. The Constitution of India, 1950, Art. 371 A
11. Dasgupta, Jyotirindra. 1997. "Authenticity and Autonomy: Insurgence and Institutional Development In India". Journal of Asian Studies 56(2): 345-370.
12. 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.
13. 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.
14. Baruah, Sanjib. 1999. “India Against Itself: Assam and the Politics of Nationality”. Philadelphia: University of Pennsylvania Press
15. Watts, Ronald L. 1999. ”The theoretical and practical implications of asymmetrical federalism, In Accommodating diversity: Asymmetry in federal states, ed. R Agranoff. Baden-Baden: Nomos Verlagsgesellschaft.
16. 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.
17. The Constitution of India, 1950, Schedule IV
18. The Constitution of India, 1950, Schedule V
19. The Constitution of India, 1950, Art. 1