Source: Indian Express

Introduction

Recently, Asymmetric Federalism was discussed in the case of In Re: Article 370 of the Constitution (2023). A 7-judge bench of the Supreme Court in this case held that Article 370 is an instance of asymmetric federalism.

• Asymmetric federalism was mentioned as a term different from sovereignty.

What were Views of Court about Asymmetric Federalism?

• Meaning of Asymmetric Federalism:
  • In asymmetric federalism, a particular State may enjoy a degree of autonomy which another State does not.
  • The difference, however, remains one of degree and not of kind. Different states may enjoy different benefits under the federal setup, but the common thread is federalism.
• Contentions of Petitioners:
  • Petitioners submitted that Article 370 must be interpreted in the context of three pillars namely asymmetric federalism, autonomy, and consent.
  • Asymmetrical federalism, that is differential rights to certain federal sub-units is a part of the Indian federal scheme. It is a part of the basic structure, as is federalism.
• Federal and Unitary:
  • Democracy and federalism are basic features of the Constitution. The term ‘federal’ is used to indicate the division of powers between the Union or Central Government and the State Governments.
  • While there are certain ‘unitary’ characteristics present in the constitutional structure in terms of which the Union Government has overriding powers in some situations, the existence of federal elements in the form of governments envisaged by the Constitution is a cornerstone of the polity.
  • This set-up has been described as quasi-federal, asymmetric federalism or cooperative federalism.

What are Special Provisions under Constitution as a Part of Asymmetric Federalism?

• Special Provisions Related to Jammu & Kashmir:
  • One of the most significant instances of asymmetric federalism in India was the special status granted to the former state of Jammu and Kashmir.
  • Article 370, which was a temporary provision, accorded Jammu and Kashmir a unique autonomy within the Indian Union.
  • This special provision allowed the state to have its own constitution and flag, limiting the application of the Indian Constitution to only specific matters.
  • However, in August 2019, the Government of India took a historic step by abrogating Article 370 and bifurcating the state into two union territories – Jammu and Kashmir, and Ladakh.
  • This move signaled a departure from the special status previously enjoyed by Jammu and Kashmir, aligning it more closely with the rest of the Indian states.
  • While the abrogation of Article 370 reduced the asymmetry in federal relations, the principle of asymmetric federalism continues to be relevant in other parts of the country.
• Other Articles Related to Special Provisions in Constitution:
  • Article 371:
    • It provides special provision for Maharasthra and Gujarat mentioning creation of distinct development boards, highlighting the governor's authority to establish such boards for Vidarbha and Marathwada regions in Maharashtra.
  • Article 371A:
    • It provides special provisions for the state of Nagaland, including a separate legislature and a special status for the Naga people to safeguard their customary laws and practices.
  • Article 371B:
    • This pertains to the state of Assam and provides for the establishment of a regional committee to examine and recommend the allocation of seats in the Legislative Assembly of the state.
  • Article 371C:
    • It deals with the special provisions for the state of Manipur, providing for a legislative assembly and a committee to ensure the proper functioning of the legislative machinery.
  • Article 371D & 371E:
    • Article 370D pertains to the state of Andhra Pradesh and provides for equitable opportunities in public employment and education.
    • Article 371E says parliament may by law provide for the establishment of a University in the State of Andhra Pradesh.
  • Article 371F:
    • It provides for special provisions with respect to the state of Sikkim, including the continuation of existing laws and their adaptation.
  • Article 371G:
    • It provides special provisions for the state of Mizoram. It states that no Act of Parliament in respect of—

(i) religious or social practices of the Mizos,

(ii) Mizo customary law and procedure,

(iii) administration of civil and criminal justice involving decisions according to Mizo customary law,

(iv) ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of the State of Mizoram by a resolution so decide.

• • Article 371H:
    • It provides special provisions for the state of Arunachal Pradesh.
    • It states that the Governor of Arunachal Pradesh shall have special responsibility with respect to law and order in the State of Arunachal Pradesh and in the discharge of his functions in relation thereto, the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken.
  • Article 371I:
    • It provides special provisions for the state of Goa.
  • Article 371J:
    • It provides power to President to make special provisions for the state of Karnataka.

Conclusion

Asymmetric federalism in the Constitution of India is a testament to the foresight of its framers, who recognized the diverse nature of the country. By accommodating regional, linguistic, and cultural differences, the constitutional framework aims to foster unity in diversity. The evolution of federal relations, such as the abrogation of Article 370, reflects the dynamic nature of India's federalism.