The Indian Constitution through the Lens of Power – III: Asymmetric Federalism

—Gautam Bhatia, Advocate, New Delhi and independent legal scholar

[Editor’s Note: This is one of our ICONnect columns. For more on our 2023 columnists, see here.]

In my previous two columns, I examined the Indian Constitution as a terrain of contestation across two axes of power: the centre-state [“federal”] axis, and the legislature-executive [“parliamentary”] axis. In this post, I shall look at how the Indian Constitution distributes power along a third axis: that of asymmetric federalism, or constitutional pluralism.

Put simply, for the purposes of this post, asymmetric federalism refers to a mode of constitutional organisation where different federal units enjoy different relationships with the centre.[1] The reasons for this might be ethnic, religious, linguistic, cultural, political, or a combination of one or more of these. The justifications are both functional (asymmetric federalism assists in national integration, especially in diverse polities) and normative (constitutional organisation should reflect the diversity and heterogeneity of a nation).[2]

Asymmetric federalism is opposed to constitutional homogeneity, which prescribes a single form of relationship between the centre and its constituent units. The Indian Constitution is – and always has been – a terrain of contestation between these conflicting visions of constitutional pluralism and constitutional homogeneity.

Asymmetric federalism under the Indian Constitution takes two forms. Under Article 371, ten states of the Union have been granted “special” constitutional arrangements. These cover a wide spectrum: from simple administrative arrangements (such as specific regional quotas or development funds) to constitutional specificity (such as a right to veto central laws on specific subjects). At the pinnacle of these is – or was – Article 370 of the Constitution, which granted “special status” to the state of Jammu and Kashmir, and the terms of which could only be altered through the joint agreement of the central and the state government. Under the terms of Article 370, alone among Indian states, Jammu and Kashmir had its own state Constitution and its own flag, and extensive autonomy (this may not sound extraordinary in terms of global federal models, but – as noted – was exceptional in the Indian context).

While, on its surface, these appear to be extensive asymmetric federal arrangements, a closer scrutiny reveals certain important facts. It appears that the Indian Constitution’s asymmetric federal provisions originated not out of a normative commitment to constitutional pluralism, but out of political demands that became impossible – or too costly –  to ignore. Thus, the ten sub-clauses of Article 371 did not exist in the original Constitution, and were brought in through amendments at different points. These amendments were the culmination of antagonistic – and indeed, often violent – social movements: for instance, special provisions for the states of Mizoram and Nagaland under Article 371 were conceded only after it was found that militarised secessionist movements could not simply be suppressed by force.

The fact that Indian asymmetric federalism is more the result of a political compromise rather than a normative commitment has given it a certain degree of fragility, and made it vulnerable to a centralising drift. For example, right from the inception of the Constitution, the union government consistently chipped away at the autonomy of Kashmir under Article 370, and this process was frequently sanctified by the Supreme Court. Eventually, in 2019, the central government and Parliament effectively abolished Article 370 altogether, through a series of procedural moves that are presently pending adjudication before the Supreme Court.[3] (The present writer was one of the counsel involved in the constitutional challenges.) Interestingly, when the State defended the abolition in court earlier this year, one of its major arguments was that Article 370 was simply a “political compromise”, that had run its course.[4]

There is a second form of asymmetric federalism under the Indian Constitution. The Constitution’s Fifth and Sixth Schedules carve out a separate zone of governance for certain areas occupied by indigenous peoples. During the drafting of the Indian Constitution, there were arguments that underpinned the drafting of the Fifth and Sixth Schedules. One was the paternalist argument that certain “backward” peoples needed “protection” from their more advanced brethren until they were ready to assimilate into the “mainstream.” The other was that there was a certain “way of life” that deserved constitutional protection.[5] The tension between these two strands of thought is reflected in the provisions of the Fifth and Sixth Schedules, which delegate a certain degree of power to local, self-governing institutions such as Autonomous District Councils [“ADCs”], but always under the overall supervision of a centrally-appointed “Governor” (who also retains overriding powers in these areas, reminiscent of the colonial executive).

Judicial decisions have also contributed to a constitutional landscape that has constrained the full exercise of autonomy and pluralism in Fifth and Sixth Schedule areas. For example, while there is a general principle of Indian constitutional interpretation that provisions creating law-making power will be interpreted broadly (so as to sustain a law, rather than invalidate it), the Supreme Court has held the other way in the case of the Sixth Schedule, interpreting provisions to constrain decentralised law-making rather than to expand it.[6] In sum, when it comes to the Fifth and the Sixth Schedule, constitutional design and interpretation seems to suggest a form of “centrally managed asymmetric federalism.”

To conclude: the immense diversity of India – as a nation-state – is reflected in the provisions of its Constitution. However, asymmetric federalism under the Indian Constitution appears to be the result more of political compulsion than normative commitment. This has left the constitution’s provisions on asymmetric federalism vulnerable to erosion over time, either through legislative legerdemain or judicial interpretation; and this, in turn, has led to a centralising drift towards constitutional homogeneity.

Suggested citation: Gautam Bhatia, The Indian Constitution through the Lens of Power – III: Asymmetric Federalism, Int’l J. Const. L. Blog, Oct. 19, 2023, at: http://www.iconnectblog.com/the-indian-constitution-through-the-lens-of-power-iii-asymmetric-federalism/

[1] See Charles Tarlton, “Symmetry and asymmetry as elements of federalism: A theoretical speculation”, (1965) 27(4) Journal of Politics 861

[2] Louis Tillin, “United in Diversity? Asymmetry in Indian Federalism” (2006) 37(1) Publius: The Journal of Federalism 45, 47.

[3] C.O. 272 & 273 of 2019.

[4] In Re Article 370 before the Supreme Court of India, oral arguments of Shri H.N. Salve. These arguments were live-streamed and can be witnessed on the SCI’s website.

[5] Kham Khan Suan Hausing, “Asymmetric Federalism and the Question of Democratic Justice in Northeast India”, (2014) 13(2) India Review 87, 90-91.

[6] District Council of United Khasi and Jaintia Hills vs Sitimon Sawian, (1972) 1 SCR 398.