Asymmetric federalism

Asymmetric federalism

Subject: Polity

Section: Federalism

Context: Recent SC judgement on Art 370

• Constitutionally, India’s governance structure is quasi-federal. While in a unitary setup, the power to legislate is concentrated in the Centre, in a federal structure, the units that form the federation have varying degrees of autonomy and powers to conduct their affairs.
• In the Indian context, while states do have autonomy, the Constitution tilts towards the Centre on certain areas, thus making it quasi-federal. The Seventh Schedule of the
• Constitution contains the Union, State and Concurrent lists that prescribe subjects that the Centre and states are empowered to legislate upon. For those in the concurrent list—which both the Centre and state can legislate upon— the Union law would prevail in case of a conflict between the law made by Parliament and the state legislature.
• However, even in this quasi-federal structure that leans more towards the Centre, not all states are equal. India’s plurality necessitates such an arrangement and the Constitution provides for differentiated equality for states depending on various factors, ranging from the fiscal, political and the administrative. However, an argument is made against asymmetric federalism, that the so-called special statuses sow seeds of regionalism and separatism and that it impacts ‘national integration.’
• The term asymmetrical federalism refers to “differences in the status of legislative or executive powers assigned by the constitution to different regional units”.
• It is a flexible type of union of states which allows the government to cut different deals with different states in special matters pertaining to them.
• 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.

Why asymmetric federalism?

To address specific local, historical and geographical contexts.

Besides the Centre and the States, the country has Union Territories with a legislature, and Union Territories without a legislature.

How does it plays out in India?

Case Study 1 : UTs

Puducherry and Delhi have legislatures, while the other territories under the Centre do not have legislatures or a ministerial council to advise the administrator. Even between Puducherry and Delhi, there is a notable difference.

Puducherry has legislative powers on any matter mentioned in the State List or the Concurrent List, insofar as it applies to the Union Territory. Delhi, which has the same field, has three further exceptions: police, land and public order are outside its purview. However, Parliament has overriding powers over any law made by the Assembly in the Union Territories.

Puducherry has one more unique feature. Despite being a single administrative unit, the Union Territory is ‘non-contiguous’. That is, its territory is not limited to one extent of land. Besides Puducherry and its adjoining areas, it has enclaves located within other States: Karaikal (within Tamil Nadu) Yanam (within Andhra Pradesh) and Mahe (within Kerala).

Case Study 2: Article 370 (Now amended)

The foremost example of asymmetry among Centre-State ties was in the way J&K related to India until August 6, 2019, the day the President declared that its special status ceased to be operative. Under Article 370, the State was allowed to have its own Constitution, its own definition of ‘permanent residents’, the right to bar outsiders from holding property, and the privilege of not having any Indian law automatically applicable to its territory. Indian laws had to be specifically permitted by its Assembly before it could operate there. It was allowed to have its own Penal and Criminal Procedure Codes. The President was empowered to notify, from time to time, the provisions of the Constitution that could be extended to the State, with or without modifications

Case Study 3: Article 371

• The ‘special provisions’ applicable to some other States are mainly in the form of empowering the Governors to discharge some special responsibilities. These States are Maharashtra, Gujarat, Manipur, Nagaland, Sikkim and Arunachal Pradesh. The common feature is that wherever Governors have been asked to discharge special responsibilities, their discretionary power overrides the process of consultation with the respective Council of Ministers.
• Article 371 says the Governor of Maharashtra has a special responsibility to establish separate development boards for Vidarbha, Marathwada, and the rest of the State, while the Governor of Gujarat has a similar responsibility towards Saurashtra, Kutch and the rest of Gujarat. The responsibilities cover equitable allocation of funds for development expenditure, and providing facilities for technical education and vocational training.
• Article 371A confers special status on Nagaland. Under this provision, no law made by Parliament in relation to Naga customary law and procedure, including civil and criminal justice matters, and ownership or transfer of land and resources will apply to Nagaland, unless the Legislative Assembly of Nagaland decides so. The protection of Naga laws and customs was written into the Constitution following the July 1960 agreement between the Centre and the Naga People’s Convention, under which the State was later created. Further, the Governor of Nagaland has a ‘special responsibility’ regarding law and order in the State.
• Article 371B contained a special provision for Assam under which a committee of legislators from the tribal areas was formed to look after their interest. The tribal areas later became Meghalaya State.
• Under Article 371C, the Hill Areas of Manipur ought to have a committee of legislators. The Governor has a special responsibility to make an annual report to the President on the administration of the Hill Areas. The Centre is empowered to give directions to the State as far as these areas were concerned.
• Article 371D is a detailed provision under which the President can pass an order to provide equitable opportunities and facilities to people belonging to different parts of Andhra Pradesh in public employment and education. In particular, the President can create local cadres in various classes of employment and allot civil posts to specified local cadres only. The President can specify any part of the State as a ‘local area’ for this purpose. To give effect to this arrangement, an Administrative Tribunal has been set up. No court, other than the Supreme Court, has any power of superintendence over this tribunal.
• Article 371F incorporated special provisions after the addition of Sikkim to India. One major objective was to grant protection to existing laws in Sikkim so that they are not declared unconstitutional after being brought under the Constitution of India.
• Article 371G contains special provisions to preserve the religious and social practices of Mizos in Mizoram and their customary law and procedure and administration of criminal and civil justice, besides ownership of land.
• Article 371H vests a special responsibility on the Governor of Arunachal Pradesh with respect to law and order. It makes clear that the Governor shall discharge this function after consulting the Council of Ministers, but exercise his individual judgment as to the action taken.

Case Study 4: Sixth Schedule

• There is another significant tier of administration under the larger framework of asymmetric federalism.
• The Sixth Schedule to the Constitution contains provisions for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram. These create autonomous districts and autonomous regions.
• Any autonomous district with different Scheduled Tribes will be divided into autonomous regions. These will be administered by District Councils and Regional Councils. These Councils can make laws with respect to allotment, occupation and use of land, management of forests other than reserve forests and water courses. Besides they can regulate social customs, marriage and divorce and property issues.
• In Assam, the Karbi-Anglong Autonomous Council, Dima Hasao Autonomous District Council and the Bodoland Territorial Council have been set up under the Sixth Schedule. Another six autonomous councils have been formed by Acts of the legislature.
• Ladakh has two autonomous hill development councils (Leh and Kargil). The Darjeeling Gorkha Hill Council is in West Bengal.