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Is India a Case of Asymmetrical Federalism?

Rekha Saxena

The Indian case of federalism has “postmodern potential” in the manner in which it has de facto and de jure asymmetries in its construction. Normatively, some of the asymmetries have served it well against opinion that these could lead to secessionism.

Rekha Saxena (rekhasaxenadu@gmail.com) is with the Department of Political Science at the University of Delhi, New Delhi.

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I n strict and simple terms, asymmetri- cal federalism means a flexible type of union that grants special status to

some federative units in the Constitution. While the term is novel, the idea is not

new as it has been implicit in constitutional texts and the literature on federalism since long (Burgess 2006: 209). More re- cently, the term has also come to be ap- plied to formulation of federal policies that allows the federal government to work out separate deals with different states on matters of specific concerns to them. 1 A recent example in Canada is the healthcare deal signed by all federal, pro- vincial, and territorial premiers signed at a marathon intergovernmental confer- ence in September 2004. This agreement allows for a separate bilateral Canada- Quebec side deal. The deal is hailed as

a recognition of distinct status of Quebec

in the Canadian federation 2 but such arrangements are supposed to be under- mining federal comity and national unity (Brock 2008: 143-62). This article purports to examine whether

India is a case of asymmetrical federalism.

I take up this issue as there is some dis-

agreement on this question. India’s ap- proach to this problem is definitely marked by ambivalence, which arises from the question whether asymmetrical federalism helps or hinders national inte- gration. There is no easy and a priori an- swer to this query. Hence, in what follows,

I first briefly discuss what has been the ex- perience in comparative federal theory in this regard. Then, in the rest of the essay,

I mainly deal with India’s pragmatic ap-

proach to constitutional and political asymmetries in relation to some states and tribal tracts in the north-east and some mainline states. Constitutional asym- metries characterise some border states in the north-west and north-east, i e, Jammu and Kashmir, Nagaland and Mizoram.

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Federal theory and practice in the age of globalisation and regional integration is at a crossroads. Klaus von Beyme has made a perceptive observation about asymmetrical federalism, which is of in- terest here. In his view, older federalism in the age of classical modernism relied on a rational model of symmetric states with liberal multicultural rights, whereas post- modern federalism of multinational states has become more tolerant of interstate asymmetries in constitutional engineer- ing (Beyme 2005: 432-47).

Concept of Asymmetry

The literature on the concept and theory of asymmetrical federalism is replete with a deeply divisive debate on the question whether asymmetry in federal structuring is a slippery terrain leading to secession or conducive to national unity. Most early writings tended to take the former posi- tion, 3 whereas the recent comparative treatment of the subject generally argues that instead of being inherently secession- ist in potential it can and has in fact helped stave off of secession. The earlier view was tainted by the classical model of unitary nation state be- queathed by the French Revolution and that of the classical model of federal state by the American War of Independence. Both the French and the Americans, pre- sumably in their revolutionary fervour projected the ideal of a nation state or that of a federal state respectively that was based on symmetrical rule of law for all citizens of the nation or for all units if the federation premised on equality of liberty and fraternity. The attitude also easily de- veloped in the postcolonial nationalists, who at the time of liberation from the colo- nial rule reacted strongly against the impe- rial divide-and-rule policy that played one community and region against the other. Thus the modern nationalists also dis- played a strong suspicion against any asymmetrical constitutional arrangement for some territorial or ethnic communities as against the others, thinking that it con- tained the seeds of separatism. In fact, in postcolonial south Asia the idea of feder- alism itself was generally suspect for state-nationalists who inherited power

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from the departing colonial rulers and desired to establish a strong nation state in due course. This is illustrated by the almost total rejection of the federal idea as such by Pakistan and Sri Lanka despite their ethno-national diversities. India and Nepal are the only examples of reluctant federalists in this part of the world, taking the evidence of the process of constitu- tion-making in the two states. It took India nearly half a century to develop some de- gree of concession to asymmetrical feder- alism, if at all. The comparative political experience of all multinational federations, with the possible exception of Switzerland, sug- gests that some degree of constitutional asymmetry is essential for establishing enduring federal unions in the contempo- rary world today. India, Belgium, Canada are cases in point in this context. These are the major examples of reasonably well-functioning asymmetrical federal democracies today. The Russian federation is also multinational and constitutionally asymmetrical, but then Russia has not yet started working as a democratic federa- tion in the strict sense of the term (Stepan 1999: 31). John McGarry in a comprehensive com- parative study of asymmetrical federal experiments in the 20th and early 21st centuries has also come to the conclusion that asymmetrical federalism per se does not lead to secession. Whether unity or secession will be the outcome depends on the contingent political factors as to how such a constitution is actually worked by the political leadership and other contex- tual factors. To quote McGarry (2005: 17),

I have argued that, contrary to the fears of state-nationalists, or integrationists, there is little evidence that asymmetry promotes break-up. Indeed, virtually all cases of seces- sion in the twentieth century have occurred from unitary states, or from democratising federations that were centralised from much of their history and that were essentially symmetrical in nature. Asymmetrical fed- eralism may be associated with instability and illiberalism in certain limited contexts, but there is nothing inherently unstable or illiberal about it. Rather, much depends on context, on motivations of the parties in- volved, and in the details of the autonomy arrangements.

Charles Tarlton who is credited with having coined the term asymmetrical

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federalism in 1965 takes a dismissive view of it, as for him, it is prone to secessionism (1965:873). The Canadian experience with the Quebec question has brought about a bit of turnaround in the theoretical appre- ciation of asymmetrical federalism as asymmetry was impliedly built into the federal constitution-making in Canada in 1867 (without using the term) and the tra- jectory of the federalist and sovereignist debate has brought to the fore the accom- modative potential of the device. 4 Federal experiments elsewhere have supported this line of argument including the Indian case (Stepan 2004). Michael Burgess (2006: 209-25) makes a more balanced theoretical statement by suggesting that the accommodative or secessionist poten- tials of asymmetrical federal arrange- ments actually depend on specific cultural and historical contexts. A flat a priori as- sertion cannot be made in this regard.

The Indian Experience

Ronald Watts (2008: 127) makes a theo- retically fruitful distinction between political asymmetry which exists in every federation as to the geographical and de- mographic sizes of the units and constitu- tional asymmetry which “refers specifi- cally to differences in the status or legisla- tive and executive powers assigned by the constitution to the different regional units”. India is characterised by both these types of asymmetry. One glaring example of political asymmetry in India is that the states are represented in the Rajya Sabha not on the footing of formal equality as in the United States of America but on the basis of their population. 5 Thus, the state of Uttar Pradesh has 31 seats whereas states from the north-east (such as Megha- laya, Mizoram, Manipur) and Pondicherry and Goa have just one seat each in the Rajya Sabha. The literature on Indian federalism has recently been applying the concept of constitutional asymmetry under which the states of Jammu and Kashmir, Nagaland, and Mizoram enjoy certain spe- cial position and powers in the Constitution not enjoyed by others. Jammu and Kash- mir has a constitution of its own drafted by the constituent assembly of the state and adopted in 1957, though its provisions broadly conform to the Constitution of India with regard to the structure of the

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government and the fundamental rights of the citizens. Article 370 (bii) limited the power of the Parliament to make laws for the state of Jammu and Kashmir to for- eign affairs, defence and communications as specified in the Instrument of Accession by dint of which the state joined the Union of India in October 1948. Parliament’s laws on subjects in the union and concur- rent lists would not automatically be valid in the state unless the president of India in concurrence with the state government declared them applicable to the state. Similarly Article 371 A and E provide that a parliamentary statute to be extended to the states of Nagaland and Mizoram re- quire the consent of the legislatures of those states, if the law concerned relates to religious and social practices of Nagas and Mizos, their customary law and pro- cedures, administration of civil and crimi- nal justice affecting these customary laws, and ownership and transfer of land resources of these states. The above articles also stipulate that the legislative assem- blies of Nagaland and Mizoram shall con- sist of not less than 46 and 40 members respectively. Moreover, Article 371 A gives the governor of Nagaland

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….

Besides these asymmetries at the state level, there are some sub-state asym- metries in the Indian Constitution that may be synoptically noted here. Indian federalism relates to a special kind of fed- erating units that are called the union ter- ritories (UTs). The seven UTs have been created at various points in time. The rea- sons for their creation were varied. These areas were either too small to be states or too difficult to merge with neighbouring states on account of cultural differences, interstate disputes, specific needs of the National Capital Territory, or far-flung isolated location on the coasts. Originally, they were all administered directly by the union through a centrally appointed administrator. None of these had a legis- lature but all were represented by at least one seat in the lower house of Parlia- ment. Parliament can either extend the

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jurisdiction of the high court of a neigh- bouring state to such territories or create a separate high court for it (Article 241[1] and [4]). Subsequently, two new types of UTs were created, namely, Pondicherry (14th Amendment Act 1962) and Delhi (69th Amendment Act 1991). A common feature of these two territories is that they have been granted unicameral legislatures whose members are directly elected by the people. The Pondicherry legislature is partly elected and partly nominated. There is also a council of ministers res- ponsible to the legislature in both the territories. The head of the state in both Delhi and Pondicherry is a lieutenant gov- ernor appointed by the union to perform formal executive functions of the govern- ment. Both the territories also have gov- ernments headed by chief ministers ac- countable to their respective legislatures. However, the chief minister of Delhi is appointed by the president of India on the recommendation of the lieutenant gover- nor. This is presumably in view of the fact that Delhi is in the National Capital Terri- tory. The legislature of Delhi enjoys only concurrent jurisdiction as in the case of conflict in regard to laws made by it and those made by Parliament, the latter pre- vails. Pondicherry is represented by one seat each in the Lok Sabha and Rajya Sab- ha. Delhi has seven Lok Sabha and three Rajya Sabha seats. Despite b eing called a state, Delhi is really a semi-state as some vital subjects like land, police and civil services are vested in the union govern- ment. The Government of Delhi enjoys only concurrent jurisdiction in other sub- jects. Hence, there has been a long-stand- ing demand of full statehood for Delhi. In the case of Pondicherry, land, police and civil services are under the jurisdiction of the state government.

Specific Asymmetries

First, there are specific asymmetries with regard to administration of tribal areas, intra-state regional disparities, law and order situation and fixation of number of seats in legislative assemblies in relation to states of Maharashtra, Gujarat, Assam, Manipur, Andhra Pradesh, Sikkim, Aru- nachal Pradesh and Goa in the Constitu- tion of India. 6 Second, the governors of

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Maharashtra and Gujarat have a “special responsibility” for the establishment of separate development boards for certain backward regions of these states with equitable allocation of development funds and provision of facilities for technical education, vocation training and employ- ment opportunities. Third, the president of India is under the constitutional obliga- tion to ensure the setting up of a commit- tee of the legislative assembly in the states of Assam and Manipur consisting of mem- bers elected from tribal/hill areas to look after the welfare of those communities. Fourth, the president of India is to ensure “equitable opportunities and facilities” for the people in different regions of Andhra Pradesh in respect of public employment and education and the establishment of a central university in the state. Fifth, the legislative assemblies of Sikkim and Goa “shall consist of not less than 30 mem- bers”. The governor of Sikkim is under certain “special responsibility for peace and for an equitable arrangement for ensuring the social and economic advance- ment of different sections of population” of the state. Sixth, the governor of Aru- nachal Pradesh has “special responsibility with respect to law and order” and to act in his “individual judgment” after consult- ing the council of ministers. An observer of the Fifth and Sixth Schedules of the Constitution has found some aberrations in these institutions but has concluded that

the constitutional protection to the minori- ties and other deprived groups has enabled the state to accommodate diversity in a meaningful way…. [and] sustained the plu- ral character of India and its rich cultural mosaic over the five decades of constitutional mode of notion building (Suresh 2009: 57).

In the debate in federal theory as well as in the context of its application to India regarding its impact on the working of federal systems in practice, Tarlton be- lieves that asymmetrical federal arrange- ments are fraught with separatist and secessionist potential, whereas Barry is critical of them due to the creation of two classes of citizenships, one for nationality- based units and the other for merely re- gional units. On the other hand, Kymlicka, Taylor, Requejo, Gagnon and Gibb argue that constitutional asymmetrical status

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is equitable and necessary for countries that are not merely multicultural but are multinational for the protection of com- munity or minority rights in the context of identity politics of recognition (Tillin 2007:

1-25). Stepan contrasts India’s “demos- enabling” (e g, Article 3 of the Constitu- tion empowering Parliament the power to reorganise states) asymmetrical federal model from the “demos-constraining” (e g, separation of powers and checks and balances) symmetrical models of federal- ism, and credits the former for its tackling of the multiple linguistic nationalism, es- pecially Tamil separatism (ibid: 58-61). However, Tillin correctly argues that India’s linguistic reorganisation, including the Tamil case, was an exercise in sym- metrical arrangement on closer examina- tion. Nevertheless, Tillin’s argument is more convincing in relation to the regional languages (including Hindi, the regional language in 10 out of 28 states) that were accorded equal status in regional or state governments. But Hindi and English were/are still accorded a special status as co-official languages of the union govern- ment as India’s lingua franca, even if it was a climbdown for Hindi that was to be- come the sole “official language” of the union of India from 1965 under the Consti- tution 15 years after its commencement in 1950. Moreover, Tillin goes on to argue that Article 370 regarding Jammu and Kashmir was included in the constitution in Part XXI under the caption “Temporary, Transitional and Special Provisions”. Im- portantly, it was neither included in rec- ognition to the state’s “distinct”, Muslim- majority status to embed corresponding group rights nor intended as a challenge to India’s composite and equal vision of territorial nationhood inclusive of all reli- gions, languages, and ethnic groups. To Tillin, India’s north-eastern states come closest to de jure asymmetrical feder- alism. Yet, she turns around and tries to show that these states “are perhaps better seen as ‘peripheral’ units within India” and approvingly quotes Watts who says “these relationships are quite distinct from those of the main body of constituent units within the major political entity” (ibid: 52-58). Though it is an interesting line of argu- ment I think many may find it difficult to accept it at least in constitutional law. As

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regards Jammu and Kashmir, whatever the intent and theory of the Indian Constitution, Article 370 has survived to date and may well be the basis of a final settlement with modifications, taking “the Indian federation into new constitutional waters” (ibid: 62). About the north-east, Tillin cites Sanjib Baruah saying that it was India’s reluc- tance to apply asymmetrical solutions to the composite state of Assam that con- strained Assam’s ability to constructively negotiate with ethnic Bengalis and tribals to accommodate them in a composite state. In any case, the north-eastern asym- metrical deals are dismissed as marginal features out of the mainstream. One may give a different interpretation than the one summed up above by Tillin. What actually matters in the case of Jammu and Kashmir is not what was intended by the Indian nationalists at the time of Independence and constitution-making but what has actually come to exist for over half a century and does not seem to be changing either nationally or inter- nationally in the foreseeable future. The autonomy to the Jammu and Kashmir under Article 370 has survived the changes of regimes both in New Delhi and in Jammu and Kashmir. The non-fulfilment of the UN Resolution is due more to the fait accompli perpetrated by Pakistan in the territory occupied by it where no such elections have ever been held. Moreover, Pakistan ceded a part of the Occupied Kashmir in Akshai Chin to China to com- plicate the bilateral question into trilateral one, without any reference to the people of the blighted state. The kind of federal autonomy that the state of Jammu and Kashmir has enjoyed in the union of India on the basis of democratic elections and federal arrangements in the state may well be the foundation on which some sort of “cosmopolitan democracy” (a la David Held 2002: 313-20) across the Line of Con- trol (LOC) may well be built up in due course if the peace process under way for the last decade or so bears fruit. So far as the north-eastern asymmetries are concerned, one may ask the question if their nature is altered because it is India that has struck those deals rather than the federative composite state of Assam. I would like to add that union of India’s asymmetrical deals with Nagaland and

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Mizoram were made by the 13th constitu- tional amendment (1962) and the 53rd constitutional amendment (1986), both years after the deal with Jammu and Kashmir. It may well be argued that Jammu and Kashmir served as a precedent to in- corporate other asymmetrical arrange- ments in the Constitution of India in the north-east. North-east is the only genuine political region of the country with the north-eastern council set up under a par- liamentary statute, a trend which may well catch on in the rest of the country with the pattern of regionalisation in Indian politics.

Concluding Observations

Summing up, to discerning eyes, India is replete with de jure and de facto asym- metries. In the first place, the Constitution of India, if studied closely, would appear to be a federation with postmodern potential and that instead of one uniform federative principle, there are numerous, as the foregoing discussion has shown. To clarify, these are not postmodern features for the simple reason that the parts of India that are treated asymmetrically are far from post-industrial structures and post-material values. If anything, they are pre-industrial and traditionally pre- material, if at all or in any sense. Hence, the term postmodern potential, rather than postmodern per se. Constitutional asymmetries are evident in the cases of the states of Jammu and Kashmir, Naga- land, and Mizoram. In the case of UTs, the two asymmetrical units are National Capi- tal Territory of Delhi and Pondicherry. Only these two units could have some pre- tentions of transition to postmodernity. Sub-state asymmetries are particularly marked in the Sixth Schedule of the Con- stitution which provides for a variety of

autonomous institutional arrangements for various tribal regions and tribal com- munities. Less far going asymmetrical de- vices are contained in the Fifth Schedule

of the Constitution relating to tribal com- munities in states where they are placed in

a demographically more composite states.

Another notable point is that Article 1 of the Constitution projects the vision of a

federal union of states and territories. It

is subsequently supplemented by a variety

of territorial and ethnic autonomies accor- ded to linguistic, religious, and tribal minorities. Looked at from the prisms of liberal individual fundamental rights and cultural communitarian rights, it would not be entirely misplaced to argue that in

a significant sense, India could be inter-

preted as a case of ethnic federalism, at least in parts. Furthermore, there are some glaring examples of de facto asymmetries in the Indian political system. The 10 states of the Hindi heartland are both territorially and demographically huge. UP in particu- lar dominated federal politics like a colos- sus until the end of the 1980s contributing eight prime ministers out of 13 so far. This de facto domination, however, has come to be challenged in the era of the multi- party system and coalition governments when the non-Hindi rimland states have “coalitionally” come to dominate federal politics since 1989. However, another de facto asymmetry has crept in the system of representation in Parliament that may be a cause of serious conflict in the future. The decennial interstate delimitation of constituencies mandated by the Constitu- tion was incrementally postponed until 2025 by a constitutional amendment. According to an estimate by a demo- grapher, if delimitation was done today, south Indian states will have to surrender

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about 15 Lok Sabha seats to their north Indian counterparts (Bose 2000: 1698-1700). The union of India, despite the Partition of 1947, continues to be territorially large and culturally composite and complex. The Hindi heartland is multicultural in composition while the north-east and the north-west as well as the de jure as well as de facto asymmetries may make Indian federalism inflexible, yet they represent the search for consensus among the elites and the masses. They may undermine a particular vision of nationalism, but they have served the Indian federal union and composite nationalism well.

Notes

1 The Royal Society of Canada, “Who’s Afraid of Asymmetrical Federalism?”, Internet http:// www.rsc.ca/print:php?long_id=1 & page_id=196, accessed on 25/2/2009

2 For example, the open letter of Benoit Pelletier, Que- bec’s minister of intergovernmental and aboriginal affairs in The Globe and Mail, 8 November 2004.

3 For a review of these works, see Beyme (2005:46); and McGarry (2005: 5-6), Singh (2011).

4 See Kymlicka (2001 and 2002), Taylor (1991).

5 Articles 4 [1] and 80 [2] read with the Fourth Schedule.

6 Article 371, 371B, 371C, 371D, 371E, 371F, 371H and 371 I. On this theme also see Arora (2010), Suan (2011: 34).

References

Arora, Balveer (2010): “The Indian Republic: Redefin- ing Diversity” in Luis Moreno and Cesar Colino (ed.), Diversity and Unity in Federal Countries (Montreal and Kingston: McGill Queen’s Univer- sity Press). Beyme, Klaus von (2005): “Asymmetrical Federalism between Globalisation and Regionalisation”, Journal of European Public Policy, Vol 12, Issue 3, June. Bose, Ashish (2000): “North-South Divide in India’s Demographic Seene”, Economic & Political Week- ly, Vol XXXV, No 20, 13-19 May. Brock, Kathy L (2008): “Politics of Asymmetrical Fed- eralism: Reconsidering the Role and Responsibili- ties of Ottawa”, Canadian Public Policies, Vol 34,

No 2, June.

Burgess, Michael (2006): Comparative Federalism:

Theory and Practice (London: Routledge). Held, David (2002): “Democracy: From City-States to a Cosmopolitan Order” in The Polity Reader in So- cial Theory (Cambridge and Oxford: Polity Press), Indian Reprint.

Kymlicka, Will (2001): Politics in the Vernacular, Na- tionalism, Multiculturalism and Citizenship (Ox- ford: Oxford University Press).

– (2002): “Federalism and Nationalism in Canada:

A Comparative Perspective” in Rekha Saxena

(ed.), Mapping Canadian Federalism for India (Delhi: Konark). McGarry, John (2005): “Asymmetrical Federalism and the Plurinational State", Position paper for The 3rd International Conference on Federalism,

Brussels, 3-5 March 2005, Section 1.2, http://

www.kbyle.com/forum/salon-discussion-gen-

erales/ 21637-asymmetricalfeder, accessed on

2.5.2011.

Singh, M P (2011): Indian Federalism: An Introduction (New Delhi: National Book Trust India). Stepan, Alfred (1999): “Federalism and Democracy:

beyond the US Model”, Journal of Democracy, Vol 10, No 4, 1999, p 31. Stepan, Alfred (2004): “Toward a New Comparative Politics of Federalism, Multi-nationalism and De- mocracy: Beyond Rikerian Federalism” in E L Gib- son (ed.), Federalism and Democracy in Latin America (Baltimore and London: The Johns Hopkins University Press). Suan, H K Khan (2011): “Tribes and the North-east in Federal Perspective”, a section in Balveer Arora,

K K Kailash, Rekha Saxena and H Kham Khan

Suan, “Indian Federalism”, ICSSR Survey of Re- search in Political Science, ICSSR Goa Workshop, 14 February, typescript.

Suresh, Kumar (2009): Pluralism and Accommodation

of

Minorities and Deprived Groups in India, Feder-

al

Studies Monograph Series, New Delhi: Centre

for Federal Studies, Hamdard Times 14.

Tarlton, Charles (1965): “Symmetry and Asymmetry

as Elements of Federalism: A Theoretical Specu- lation”, Journal of Politics, 26(4), p 873.

Taylor, Charles (1991): “Shared and Divergent Val- ues” in R Watts and D M Brown (ed.), Options for

a New Canada (Toronto: University of Toronto

Press).

Tillin, Louise (2007): “United in Diversity? Asymme- try in Indian Federalism”, Publius: The Journal of Federalism, Vol 37, No 1, Winter. Watts, Ronald L (2008): Comparing Federal Systems (Montreal and Kingston: Institute of Intergovern- mental Relations), 3rd edition.

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