Is India a Case of Asymmetrical Federalism?

Author(s): REKHA SAXENA

Source: Economic and Political Weekly, Vol. 47, No. 2 (JANUARY 14, 2012), pp. 70-71, 73-
75
Published by: Economic and Political Weekly
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 NOTES

Is India a Case of Federal theory and practice in the age

of globalisation and regional integration

Asymmetrical Federalism? made a perceptive observation about

is at a crossroads. Klaus von Beyme has

asymmetrical federalism, which is of in

terest here. In his view, older federalism in
REKHA SAXENA
the age of classical modernism relied on a
rational model of symmetric states with
The Indian case of federalism has liberal multicultural rights, whereas post
cal federalism means a flexible type of modern federalism of multinational states
"postmodern potential" in the
manner in which it has de facto
In strict and special
union that grants simple
status toterms, asymmetri has become more tolerant of interstate
some federative units in the Constitution.
asymmetries in constitutional engineer
and de jure asymmetries in its While the term is novel, the idea is not ing (Beyme 2005: 432-47)
construction. Normatively, some new as it has been implicit in constitutional
texts and the literature on federalism Concept of Asymmetry
of the asymmetries have served
since long (Burgess 2006: 209). MoreThe
re literature on the concept and theory of
it well against opinion that these
cently, the term has also come to beasymmetrical
ap federalism is replete with a
could lead to secessionism.
deeply divisive debate on the question
plied to formulation of federal policies
that allows the federal government whether
to asymmetry in federal structuring
work out separate deals with different
is a slippery terrain leading to secession or
states on matters of specific concerns conducive
to to national unity. Most early
them.1 A recent example in Canada is the
writings tended to take the former posi
healthcare deal signed by all federal, pro
tion,3 whereas the recent comparative
vincial, and territorial premiers signedtreatment
at of the subject generally argues
a marathon intergovernmental confer
that instead of being inherently secession
ence in September 2004. This agreement
ist in potential it can and has in fact helped
allows for a separate bilateral Canadastave off of secession.
Quebec side deal. The deal is hailed as The earlier view was tainted by the
a recognition of distinct status of Quebec
classical model of unitary nation state be
in the Canadian federation2 but such queathed by the French Revolution and
that of the classical model of federal state
arrangements are supposed to be under
by the American War of Independence.
mining federal comity and national unity
(Brock 2008:143-62). Both the French and the Americans, pre
This article purports to examine whether
sumably in their revolutionary fervour
India is a case of asymmetrical federalism.
projected the ideal of a nation state or that
I take up this issue as there is some dis
of a federal state respectively that was
agreement on this question. India's apbased on symmetrical rule of law for all
proach to this problem is definitely
citizens of the nation or for all units if the
marked by ambivalence, which arisesfederation premised on equality of liberty
from the question whether asymmetrical
and fraternity. The attitude also easily de
federalism helps or hinders national inte
veloped in the postcolonial nationalists,
who at the time of liberation from the colo
gration. There is no easy and a priori an
swer to this query. Hence, in what follows,
nial rule reacted strongly against the impe
I first briefly discuss what has been the rial
ex divide-and-rule policy that played one
perience in comparative federal theory community
in and region against the other.
this regard. Then, in the rest of the essay,Thus the modern nationalists also dis
I mainly deal with India's pragmatic played
ap a strong suspicion against any
proach to constitutional and political
asymmetrical constitutional arrangement
for some territorial or ethnic communities
asymmetries in relation to some states
and tribal tracts in the north-east and some
as against the others, thinking that it con
mainline states. Constitutional asym
tained the seeds of separatism. In fact, in
Rekha Saxena (rekhasaxenadu@gmail.com) is metries characterise some border states in
postcolonial south Asia the idea of feder
with the Department of Political Science at the
alism itself was generally suspect for
the north-west and north-east, i e, Jammu
University of Delhi, New Delhi.
and Kashmir, Nagaland and Mizoram. state-nationalists who inherited power

70 January 14, 2012 vol xlvii no 2 EE3 Economic & Political weekly

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 NOTES

from the departing colonial rulers and in 1965 takes a dismissive view
federalism government and the fundamental rights
desired to establish a strong nation state
of it, of the citizens. Article 370 (bii) limited the
as for him, it is prone to secessionism
in due course. This is illustrated (1965:873).
by the The Canadian experience with power of the Parliament to make laws for
the
almost total rejection of the federal Quebec
idea as question has brought about the
a state of Jammu and Kashmir to for
such by Pakistan and Sri Lanka bit despite eign affairs, defence and communications
of turnaround in the theoretical appre
their ethno-national diversities. India andciation of asymmetrical federalism as specified in the Instrument of Accession
Nepal are the only examples of reluctant asymmetry was impliedly built into the by dint of which the state joined the Union
federal constitution-making in Canada in
federalists in this part of the world, taking of India in October 1948. Parliament's
the evidence of the process of constitu laws on subjects in the union and concur
1867 (without using the term) and the tra
jectory of the federalist and sovereignist
tion-making in the two states. It took India rent lists would not automatically be valid
debate has brought to the fore the accom
nearly half a century to develop some de in the state unless the president of India in
gree of concession to asymmetrical feder concurrence with the state government
modative potential of the device.4 Federal
alism, if at all. declared them applicable to the state.
experiments elsewhere have supported
The comparative political experience of
this line of argument including the Indian
Similarly Article 371 A and E provide that
all multinational federations, with thecase (Stepan 2004). Michael Burgessa parliamentary statute to be extended to
possible exception of Switzerland, sug (2006: 209-25) makes a more balanced the states of Nagaland and Mizoram re
quire the consent of the legislatures of
theoretical statement by suggesting that
gests that some degree of constitutional
those states, if the law concerned relates
the accommodative or secessionist poten
asymmetry is essential for establishing
tials of asymmetrical federal arrange
enduring federal unions in the contempo to religious and social practices of Nagas
rary world today. India, Belgium, Canada and Mizos, their customary law and pro
ments actually depend on specific cultural
are cases in point in this context. These cedures, administration of civil and crimi
and historical contexts. A flat a priori as
are the major examples of reasonably
sertion cannot be made in this regard. nal justice affecting these customary
well-functioning asymmetrical federal laws, and ownership and transfer of land
democracies today. The Russian federationThe Indian Experience resources of these states. The above articles

Ronald Watts (2008: 127) makes a theo

is also multinational and constitutionally also stipulate that the legislative assem
retically fruitful distinction between
asymmetrical, but then Russia has not yet blies of Nagaland and Mizoram shall con
started working as a democratic federa sist of not less than 46 and 40 members
political asymmetry which exists in every
federation as to the geographical and respectively.
tion in the strict sense of the term (Stepan de Moreover, Article 371 A gives
1999: 31). the governor of Nagaland
mographic sizes of the units and constitu
John McGarry in a comprehensive com tional asymmetry which "refers specifisome special responsibility with respect to
parative study of asymmetrical federal cally to differences in the status or legislalaw and order in the state of Nagaland for so
experiments in the 20th and early 21st tive and executive powers assigned by the long as in his opinion internal disturbances
centuries has also come to the conclusion constitution to the different regionaloccurring in the Naga Hills-TXiensang area
immediately before the formation of that
that asymmetrical federalism per se does
units". India is characterised by both these
state continue....
not lead to secession. Whether unity or
types of asymmetry. One glaring example
secession will be the outcome depends on
of political asymmetry in India is that theBesides these asymmetries at the state
the contingent political factors as to how level, there are some sub-state asym
states are represented in the Rajya Sabha
not on the footing of formal equality asmetries
such a constitution is actually worked by in in the Indian Constitution that

the political leadership and other contexthe United States of America but on the may be synoptically noted here. Indian
tual factors. To quote McGarry (2005:17),basis of their population.5 Thus, the state
federalism relates to a special kind of fed
I have argued that, contrary to the fears of of Uttar Pradesh has 31 seats whereas erating units that are called the union ter
ritories (uts). The seven uts have been
state-nationalists, or integrationists, therestates from the north-east (such as Megha
is little evidence that asymmetry promotes laya, Mizoram, Manipur) and Pondicherry
created at various points in time. The rea
break-up. Indeed, virtually all cases of seces
and Goa have just one seat each in the
sons for their creation were varied. These
sion in the twentieth century have occurred
from unitary states, or from democratising
Rajya Sabha. The literature on Indian
areas were either too small to be states or

federations that were centralised from much too difficult to merge with neighbouring
federalism has recently been applying the
of their history and that were essentiallyconcept of constitutional asymmetry under states on account of cultural differences,
symmetrical in nature. Asymmetrical fedwhich the states of Jammu and Kashmir, interstate disputes, specific needs of the
eralism may be associated with instability
Nagaland, and Mizoram enjoy certain spe National Capital Territory, or far-flung
and illiberalism in certain limited contexts,
but there is nothing inherently unstable or
isolated
cial position and powers in the Constitution location on the coasts. Originally,
not enjoyed by others. Jammu and Kash
illiberal about it. Rather, much depends on they were all administered directly by
context, on motivations of the parties in mir has a constitution of its own drafted the union through a centrally appointed
volved, and in the details of the autonomyby the constituent assembly of the state administrator. None of these had a legis
arrangements.
and adopted in 1957, though its provisions lature but all were represented by at
Charles Tarlton who is credited with
broadly conform to the Constitution of least one seat in the lower house of Parlia
India with regard to the structure of the ment. Parliament can either extend the
having coined the term asymmetrical

Economic & Political weekly mm January 14, 2012 vol xlvii no 2 71

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 NOTES

jurisdiction of the high court of a neighMaharashtra and Gujarat have a "special

is equitable and necessary for countries
bouring state to such territories or create responsibility"
a for the establishment
that areof
not merely multicultural but are
separate high court for it (Article 241 [1]separate development boards for certain
multinational for the protection of com
and [4]). backward regions of these states with
munity or minority rights in the context of
Subsequently, two new types of uts equitable allocation of development funds
identity politics of recognition (Tillin 2007:
were created, namely, Pondicherry (14th 1-25). Stepan contrasts India's "demos
and provision of facilities for technical
Amendment Act 1962) and Delhi (69th education, vocation training and employ
enabling" (e g, Article 3 of the Constitu
Amendment Act 1991). A common feature ment opportunities. Third, the president
tion empowering Parliament the power to
of these two territories is that they have reorganise
of India is under the constitutional obliga states) asymmetrical federal
been granted unicameral legislatures model from the "demos-constraining"
tion to ensure the setting up of a commit
whose members are directly elected by (e g,
tee of the legislative assembly in the separation of powers and checks and
states
the people. The Pondicherry legislature is of Assam and Manipur consisting of balances)
mem symmetrical models of federal
partly elected and partly nominated. bers elected from tribal/hill areas ism,
to and
lookcredits the former for its tackling
There is also a council of ministers res after the welfare of those communities. of the multiple linguistic nationalism, es
ponsible to the legislature in both the Fourth, the president of India is to ensurepecially Tamil separatism (ibid: 58-61).
territories. The head of the state in both "equitable opportunities and facilities" for However, Tillin correctly argues that
Delhi and Pondicherry is a lieutenant gov the people in different regions of Andhra
India's linguistic reorganisation, including
the Tamil case, was an exercise in sym
ernor appointed by the union to performPradesh in respect of public employment
formal executive functions of the governand education and the establishment of a metrical arrangement on closer examina
tion. Nevertheless, Tillin's argument is
ment. Both the territories also have gov central university in the state. Fifth, the
ernments headed by chief ministers ac legislative assemblies of Sikkim and Goamore convincing in relation to the regional
countable to their respective legislatures. "shall consist of not less than 30 memlanguages (including Hindi, the regional
However, the chief minister of Delhi isbers". The governor of Sikkim is under
language in 10 out of 28 states) that were
appointed by the president of India on the certain "special responsibility for peace
accorded equal status in regional or state
recommendation of the lieutenant gover and for an equitable arrangement forgovernments. But Hindi and English
nor. This is presumably in view of the fact ensuring the social and economic advance
were/are still accorded a special status as
that Delhi is in the National Capital Terri ment of different sections of population"co-official languages of the union govern
tory. The legislature of Delhi enjoys onlyof the state. Sixth, the governor of Arument as India's lingua franca, even if it
was a climbdown for Hindi that was to be
concurrent jurisdiction as in the case of nachal Pradesh has "special responsibility
come the sole "official language" of the
conflict in regard to laws made by it andwith respect to law and order" and to act
those made by Parliament, the latter pre in his "individual judgment" after consultunion of India from 1965 under the Consti
vails. Pondicherry is represented by one ing the council of ministers. tution 15 years after its commencement in
seat each in the Lok Sabha and Rajya Sab An observer of the Fifth and Sixth 1950. Moreover, Tillin goes on to argue
ha. Delhi has seven Lok Sabha and three Schedules of the Constitution has found that Article 370 regarding Jammu and
Rajya Sabha seats. Despite being calledsome
a aberrations in these institutions but Kashmir was included in the constitution
has concluded that
state, Delhi is really a semi-state as some in Part xxi under the caption "Temporary,
vital subjects like land, police and civil Transitional and Special Provisions". Im
the constitutional protection to the minori
services are vested in the union govern ties and other deprived groups has enabled portantly, it was neither included in rec
ment. The Government of Delhi enjoys the state to accommodate diversity in a ognition to the state's "distinct", Muslim
only concurrent jurisdiction in other sub meaningful way.... [and] sustained the plu majority status to embed corresponding
ral character of India and its rich cultural
jects. Hence, there has been a longstand group rights nor intended as a challenge
mosaic over the five decades of constitutional
ing demand of full statehood for Delhi. In to India's composite and equal vision of
mode of notion building (Suresh 2009: 57).
the case of Pondicherry, land, police and territorial nationhood inclusive of all reli
civil services are under the jurisdiction of In the debate in federal theory as well gions, languages, and ethnic groups.
the state government. as in the context of its application to India To Tillin, India's north-eastern states
regarding its impact on the working of come closest to de jure asymmetrical feder
Specific Asymmetries federal systems in practice, Tarlton be alism. Yet, she turns around and tries to
First, there are specific asymmetries with
lieves that asymmetrical federal arrange show that these states "are perhaps better
regard to administration of tribal areas,
ments are fraught with separatist and seen as 'peripheral' units within India" and
intra-state regional disparities, law and
secessionist potential, whereas Barry is approvingly quotes Watts who says "these
order situation and fixation of number of critical of them due to the creation of two relationships are quite distinct from those
seats in legislative assemblies in relation classes of citizenships, one for nationality of the main body of constituent units within
to states of Maharashtra, Gujarat, Assam, based units and the other for merely re the major political entity" (ibid: 52-58).
Manipur, Andhra Pradesh, Sikkim, Aru gional units. On the other hand, Kymlicka, Though it is an interesting line of argu
nachal Pradesh and Goa in the Constitu Taylor, Requejo, Gagnon and Gibb argue ment I think many may find it difficult to
tion of India.6 Second, the governors of that constitutional asymmetrical status accept it at least in constitutional law. As

Economic & Political weekly QEQ3 January 14, 2012 vol xlvii no 2 73

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NOTES

the were made by the 13th constitu autonomous institutional arrangements

Mizoram
regards Jammu and Kashmir, whatever
tional amendment (1962) and the 53rd
intent and theory of the Indian Constitution, for various tribal regions and tribal com
constitutional
Article 370 has survived to date and may amendment (1986), both munities. Less far going asymmetrical de
well be the basis of a final settlement with years after the deal with Jammu and vices are contained in the Fifth Schedule
modifications, taking "the Indian federation Kashmir. It may well be argued that Jammu of the Constitution relating to tribal com
into new constitutional waters" (ibid: 62). and Kashmir served as a precedent to in munities in states where they are placed in
About the north-east, Tillin cites Sanjib corporate other asymmetrical arrange a demographically more composite states.
Baruah saying that it was India's reluc ments in the Constitution of India in the Another notable point is that Article 1 of
tance to apply asymmetrical solutions to north-east. North-east is the only genuine the Constitution projects the vision of a
the composite state of Assam that con political region of the country with the federal union of states and territories. It
strained Assam's ability to constructively north-eastern council set up under a par is subsequently supplemented by a variety
negotiate with ethnic Bengalis and tribals liamentary statute, a trend which may of territorial and ethnic autonomies accor
to accommodate them in a composite well catch on in the rest of the country ded to linguistic, religious, and tribal
state. In any case, the north-eastern asym with the pattern of regionalisation in minorities. Looked at from the prisms of
metrical deals are dismissed as marginal Indian politics. liberal individual fundamental rights and
features out of the mainstream. cultural communitarian rights, it would
One may give a different interpretation Concluding Observations not be entirely misplaced to argue that in
a significant
than the one summed up above by Tillin. Summing up, to discerning eyes, India is sense, India could be inter
What actually matters in the case of Jammu replete with de jure and de facto asym
preted as a case of ethnic federalism, at
and Kashmir is not what was intended least in parts.
metries. In the first place, the Constitution
by the Indian nationalists at the time of Furthermore, there are some glaring
of India, if studied closely, would appear
Independence and constitution-making to be a federation with postmodern examples of de facto asymmetries in the
but what has actually come to exist for Indian political system. The 10 states of
potential and that instead of one uniform
over half a century and does not seem federative
to the Hindi heartland are both territorially
principle, there are numerous,
be changing either nationally or inter as the foregoing discussion has shown.and
To demographically huge, up in particu
nationally in the foreseeable future. The lar dominated federal politics like a colos
clarify, these are not postmodern features
autonomy to the Jammu and Kashmir for the simple reason that the partssus ofuntil the end of the 1980s contributing
India that are treated asymmetrically eight
under Article 370 has survived the changes are prime ministers out of 13 so far. This
de facto domination, however, has come
far from post-industrial structures and
of regimes both in New Delhi and in Jammu
and Kashmir. The non-fulfilment of the post-material values. If anything, they
to be challenged in the era of the multi
UN Resolution is due more to the faitare pre-industrial and traditionally party
pre system and coalition governments
when the non-Hindi rimland states have
material, if at ail or in any sense. Hence,
accompli perpetrated by Pakistan in the
the term postmodern potential, rather
territory occupied by it where no such "coalitionally" come to dominate federal
than postmodern per se. Constitutional
elections have ever been held. Moreover, politics since 1989. However, another de
Pakistan ceded a part of the Occupied
asymmetries are evident in the cases of asymmetry has crept in the system
facto
Kashmir in Akshai Chin to China to com the states of Jammu and Kashmir, Naga of representation in Parliament that may
land, and Mizoram. In the case of uts, be
plicate the bilateral question into trilateral a cause of serious conflict in the future.
the
one, without any reference to the people The decennial interstate delimitation of
two asymmetrical units are National Capi
tal Territory of Delhi and Pondicherry.
of the blighted state. The kind of federal constituencies mandated by the Constitu
Only these two units could have some tion
autonomy that the state of Jammu and pre was incrementally postponed until
2025 by a constitutional amendment.
Kashmir has enjoyed in the union of Indiatentions of transition to postmodernity.
on the basis of democratic elections and
Sub-state asymmetries are particularly According to an estimate by a demo
marked in the Sixth Schedule of the Con
federal arrangements in the state may grapher, if delimitation was done today,
well be the foundation on which some sort south Indian states will have to surrender
stitution which provides for a variety of
of "cosmopolitan democracy" (a la David
Held 2002: 313-20) across the Line of Con For the Attention of Subscribers and
trol (loc) may well be built up in due
Subscription Agencies Outside India
course if the peace process under way for
the last decade or so bears fruit. It has come to our notice that a large number of subscriptions to the EPW from outside the
country together with the subscription payments sent to supposed subscription agents in
So far as the north-eastern asymmetries
India have not been forwarded to us.
are concerned, one may ask the question if
their nature is altered because it is India We wish to point out to subscribers and subscription agencies outside India that all foreign
subscriptions, together with the appropriate remittances, must be forwarded to us and not
that has struck those deals rather than the
to unauthorised third parties in India.
federative composite state of Assam. I
We take no responsibility whatsoever in respect of subscriptions not registered with us.
would like to add that union of India's
Manager
asymmetrical deals with Nagaland and
74 January 14, 2012 vol xlvii no 2 laayi Economic & Political weekly

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 NOTES

about 15 Lok Sabha seats to their north

6 Article 371,371B, 371C, 371D, 371E, 371F, 371H and Brussels, 3-5 March 2005, Section 1.2, http://
3711. On this theme also see Arora (2010), Suan www.kbyle.com/forum/salon-discussion-gen
Indian counterparts (Bose 2000:1698-1700).
(2011: 34). erales/ 21637-asymmetricalfeder, accessed on
The union of India, despite the Partition 2.5.2011.
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