NOTES

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.

70

n strict and simple terms, asymmetrical 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 recently, the term has also come to be applied 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, provincial, and territorial premiers signed at
a marathon intergovernmental conference in September 2004. This agreement
allows for a separate bilateral CanadaQuebec side deal. The deal is hailed as
a recognition of distinct status of Quebec
in the Canadian federation2 but such
arrangements are supposed to be undermining 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. Indias ap
proach to this problem is definitely
marked by ambivalence, which arises
from the question whether asymmetrical
federalism helps or hinders national integration. There is no easy and a priori answer to this query. Hence, in what follows,
I first briefly discuss what has been the experience in comparative federal theory in
this regard. Then, in the rest of the essay,
I mainly deal with Indias pragmatic approach to constitutional and political
asymmetries in relation to some states
and tribal tracts in the north-east and some
mainline states. Constitutional asymmetries characterise some border states in
the north-west and north-east, i e, Jammu
and Kashmir, Nagaland and Mizoram.

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 interest 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 postmodern federalism of multinational states
has become more tolerant of interstate
asymmetries in constitutional engineering (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 position,3 whereas the recent comparative
treatment of the subject generally argues
that instead of being inherently secessionist 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 bequeathed 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, presumably 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 developed in the postcolonial nationalists,
who at the time of liberation from the colonial rule reacted strongly against the imperial divide-and-rule policy that played one
community and region against the other.
Thus the modern nationalists also displayed a strong suspicion against any
asymmetrical constitutional arrangement
for some territorial or ethnic communities
as against the others, thinking that it contained 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

january 14, 2012 vol xlvii no 2 EPW Economic & Political Weekly

NOTES

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 constitution-making in the two states. It took India
nearly half a century to develop some degree of concession to asymmetrical federalism, if at all.
The comparative political experience of
all multinational federations, with the
possible exception of Switzerland, suggests that some degree of constitutional
asymmetry is essential for establishing
enduring federal unions in the contemporary 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 federation in the strict sense of the term (Stepan
1999: 31).
John McGarry in a comprehensive comparative 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 contextual 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 secession 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 federalism 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 involved, and in the details of the autonomy
arrangements.

Charles Tarlton who is credited with

having coined the term asymmetrical

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 appreciation of asymmetrical federalism as
asymmetry was impliedly built into the
federal constitution-making in Canada in
1867 (without using the term) and the trajectory of the federalist and sovereignist
debate has brought to the fore the accommodative 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 potentials of asymmetrical federal arrangements actually depend on specific cultural
and historical contexts. A flat a priori assertion cannot be made in this regard.

The Indian Experience

Ronald Watts (2008: 127) makes a theoretically fruitful distinction between
political asymmetry which exists in every
federation as to the geographical and demographic sizes of the units and constitutional asymmetry which refers specifically to differences in the status or legislative 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 Meghalaya, 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 special position and powers in the Constitution
not enjoyed by others. Jammu and Kashmir 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

Economic & Political Weekly EPW january 14, 2012 vol xlvii no 2

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 foreign 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. Parliaments
laws on subjects in the union and concurrent 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 require 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 procedures, administration of civil and criminal justice affecting these customary
laws, and ownership and transfer of land
resources of these states. The above articles
also stipulate that the legislative assemblies of Nagaland and Mizoram shall consist 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 asymmetries in the Indian Constitution that
may be synoptically noted here. Indian
federalism relates to a special kind of federating units that are called the union territories (UTs). The seven UTs have been
created at various points in time. The reasons 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 legislature but all were represented by at
least one seat in the lower house of Parliament. Parliament can either extend the

71

NOTES

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NOTES

jurisdiction of the high court of a neighbouring 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 governor appointed by the union to perform
formal executive functions of the government. Both the territories also have governments headed by chief ministers accountable to their respective legislatures.
However, the chief minister of Delhi is
appointed by the president of India on the
recommendation of the lieutenant governor. This is presumably in view of the fact
that Delhi is in the National Capital Territory. 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 prevails. Pondicherry is represented by one
seat each in the Lok Sabha and Rajya Sabha. Delhi has seven Lok Sabha and three
Rajya Sabha seats. Despite being called a
state, Delhi is really a semi-state as some
vital subjects like land, police and civil
services are vested in the union government. The Government of Delhi enjoys
only concurrent jurisdiction in other subjects. Hence, there has been a long-standing 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, Arunachal Pradesh and Goa in the Constitution of India.6 Second, the governors of

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 employment opportunities. Third, the president
of India is under the constitutional obligation to ensure the setting up of a committee of the legislative assembly in the states
of Assam and Manipur consisting of members 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 members. The governor of Sikkim is under
certain special responsibility for peace
and for an equitable arrangement for
ensuring the social and economic advancement of different sections of population
of the state. Sixth, the governor of Arunachal Pradesh has special responsibility
with respect to law and order and to act
in his individual judgment after consulting 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 minorities and other deprived groups has enabled
the state to accommodate diversity in a
meaningful way. [and] sustained the plural 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 believes that asymmetrical federal arrangements are fraught with separatist and
secessionist potential, whereas Barry is
critical of them due to the creation of two
classes of citizenships, one for nationalitybased units and the other for merely regional units. On the other hand, Kymlicka,
Taylor, Requejo, Gagnon and Gibb argue
that constitutional asymmetrical status

Economic & Political Weekly EPW january 14, 2012 vol xlvii no 2

is equitable and necessary for countries

that are not merely multicultural but are
multinational for the protection of community or minority rights in the context of
identity politics of recognition (Tillin 2007:
1-25). Stepan contrasts Indias demos-
enabling (e g, Article 3 of the Constitution 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 federalism, and credits the former for its tackling
of the multiple linguistic nationalism, especially Tamil separatism (ibid: 58-61).
However, Tillin correctly argues that
Indias linguistic reorganisation, including
the Tamil case, was an exercise in symmetrical arrangement on closer examination. Nevertheless, Tillins 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 government as Indias lingua franca, even if it
was a climbdown for Hindi that was to become the sole official language of the
union of India from 1965 under the Constitution 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. Importantly, it was neither included in recognition to the states distinct, Muslimmajority status to embed corresponding
group rights nor intended as a challenge
to Indias composite and equal vision of
territorial nationhood inclusive of all religions, languages, and ethnic groups.
To Tillin, Indias north-eastern states
come closest to de jure asymmetrical federalism. 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 argument I think many may find it difficult to
accept it at least in constitutional law. As

73

NOTES

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 Indias reluctance to apply asymmetrical solutions to
the composite state of Assam that constrained Assams ability to constructively
negotiate with ethnic Bengalis and tribals
to accommodate them in a composite
state. In any case, the north-eastern asymmetrical 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 complicate 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 Control (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 Indias
asymmetrical deals with Nagaland and

74

Mizoram were made by the 13th constitutional 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 incorporate other asymmetrical arrangements 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 parliamentary 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 asymmetries. 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, Nagaland, and Mizoram. In the case of UTs, the
two asymmetrical units are National Capital Territory of Delhi and Pondicherry.
Only these two units could have some pretentions of transition to postmodernity.
Sub-state asymmetries are particularly
marked in the Sixth Schedule of the Constitution which provides for a variety of

autonomous institutional arrangements

for various tribal regions and tribal communities. Less far going asymmetrical devices are contained in the Fifth Schedule
of the Constitution relating to tribal communities 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 interpreted 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 particular dominated federal politics like a colossus 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 multiparty 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 Constitution 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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january 14, 2012 vol xlvii no 2 EPW Economic & Political Weekly

NOTES

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, Whos 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, Quebecs 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).

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