Indian Constitution and Asymmetric Federalism

“It must always be remembered that the various Indian tribes were once independent and sovereign nations and that their claim to sovereignty long predates that of our own Government” [1]

First of all if we have to know whether “the Indian constitution carries the pattern or strands of asymmetric federalism” we will have to get some quick brief on what is a federalism and what do we mean by ‘asymmetric’ here? In simple words asymmetric means when the two parts of a thing are not equal or same proportion. And federalism is an idea of a federal organization of more or less self-governing units.

“Asymmetric federalism” is federalism based on unequal powers and relationships in administrative, political and fiscal agreements spheres between the units which constitute a federation.

Asymmetric federalism is found in a federation in which different constituent states possess different powers. One or more of the states has considerably more independence than the other sub states, though they have the same constitutional status. The division of powers between sub states is not symmetric. This is opposite to a symmetric federation, where no distinction is made between constituent states. Generally ‘Asymmetric federalism’ is preferred as a solution when one or two constituent units or states feel significantly different needs from the others, as the result of an ethnic, linguistic or cultural difference. The difference between an ‘Asymmetric Federation’ and ‘Federacy’ is unclear; a federacy is essentially an extreme case of an asymmetric federation, either due to large differences in the level of autonomy, or the rigidity of the constitutional arrangements. An asymmetric federation however has to have a federal constitution and all states in federation have the same formal status (“state”), while in a federacy independent substate has a different status (“autonomous region”). Asymmetry form of federation can be seen in between two states and also between state and centre.

Asymmetric federalism can be seen in India also. The finest example of asymmetric federalism is the special provision in the Constitution of India regarding the state of Jammu and Kashmir. The state of Jammu and Kashmir is a constituent state of the Indian union and it also enjoys special status under the constitution of India. The reason for this special power given to the state of Jammu and Kashmir was the political and constitutional changes that happened in the state of Jammu and Kashmir. After the Independence, each state of the country was given freedom to accede to the Dominion of India or to the Dominion of Pakistan or declare itself independent. This was declared in the Indian Independence Act, 1947. Because the state was not protected from Pakistan the Maharaja of Jammu and Kashmir asked India for help and he made an offer to the Governor-General of India to accede to the Dominion of India. This offer was accepted by the Governor-General of India, but there were some certain conditions. The Instrument of Accession to accede to the Dominion of India was signed by the Maharaja of Jammu and Kashmir on October 26, 1947. Through the Constituent Assembly the people of the state also confirmed their accusation to the Dominion of India on November 17, 1957. Thus the state of Jammu and Kashmir was declared to be an integral part of the Union of India [2] .

Special provision for Jammu and Kashmir

The future picture of the relationship between India and the States was not very clear due to many complications existing during 1950. Therefore the constitution contains Art. 370 which enables the constitutional position of the state vis-a-vis the Indian Union to be defined from time to time without much difficulty. [3] Article 370 of the Indian Constitution made some “temporary provisions” with respect to the state of Jammu and Kashmir, the Article 370 makes Art. 1 of the constitution which defines the territory of the union, and Art. 370 itself applicable to the state at once. According to the Art. 370(1) [4] of the constitution of India there is a limit on teh power of the parliament to make laws for the state.

The Art. 370 of the India Constitution also empowers the president to define the constitutional relationship of the state in terms of provisions of the constitution of India, subject to the condition that he can do so with reference to the matters in the Instruments of Accession in consultation with, and reference to the matters with the concurrence of, the state government [5] . There is a particular word “modification” in the article 370 of the constitution of India that word is to be given the wildest amplitude. Thus the president has the power to change or modify, vary a provision given in the provision, in any way he thinks it is necessary, while applying it to the state. The power to ‘modify’ the provision of the constitution of India is co-extensive with the power to amend and is not confined to small changes only.

The state of Jammu and Kashmir was given special power because the state though include several diverse population, but the majority of the population of the state is Muslim, and the state was also near the new country “Pakistan’ which is a major ‘Muslim’ country. The state was acceded to the union of India under very special terms, which were incorporated in article 370 of the constitution. ‘Article 370’ gave some special powers to the state of Jammu and Kashmir, the article gave state an exclusive position in the union of India, it gave the state its own constitution, a special assignment of the functional responsibility. the centre was given power only in foreign affairs, defence and communications in that state and the state legislature had residuary powers. No other state in India was given such powers, in other states the centre’s assignment of duties was much more extensive, and centre retained residuary powers. Article 370 of the constitution of India clearly recognises the special position of the state of Jammu and Kashmir and that is why the president is given the power to apply the provisions of the constitution to that state subject to such exception and modification as the president may by order specify. [6] Thus the president of the country has the power to say that certain provisions of the constitution of India would not be applicable to the state of Jammu and Kashmir. But the president besides having the power to make exception on the application of certain constitutional provisions also has the power to apply the provisions of the constitution which such modification as he thinks fit. The meaning of the word ‘modification’ used in article 370(1) must be given the widest effect, including making radical modifications. [7] And furthermore the article 370 of the constitution gives power to the president to modify a constitutional provision not only when it is being applied to the state for the first time, but even after it has been applied to the state. [8] Any amendment which has been made to the constitution of India, that amendment does not apply directly to the state of Jammu and Kashmir. The amendment will only apply to the state of Jammu and Kashmir with the concurrence of the state government, and when the president of the country issues an order under article 370 of the constitution.

The constitution of India empowers the president of the country to adapt the constitutional provisions applied or to be applied to the state of Jammu and Kashmir in the light of situation existing in the state from time to time. [9] This is a very flexible arrangement under this arrangement the constitutional position of the state can defined from time to time.

The article 370 of the constitution of India has been defined being temporary in nature. According to the article 370(3) [10] of the constitution the president, may declare by public notification that the article 370 shall cease to be operative, or shall be operative only with such modification and exception, and from such date as he may specify. The recommendation of the Constituent Assembly “shall be necessary” before the president can issue any such notice.

STATE OF MAHARASHTRA AND GUJARAT

By article 371(2) [11] of the constitution of India the president has power to lay special responsibility on the governor of Maharashtra or Gujarat for the development of certain areas of that particular state. While discharging the special responsibility which is given to the governor of the state by the president, the governor has to follow the direction which is issued by the president. The original article 371 said that for a period of ten years or for a longer or shorter period as may be provided by the parliament, the states under part B shall be under general control of the president and shall obey the direction laid down by the president. When the reorganisation and abolition of categorization of states was done, the original article 371 of the constitution lost all its relevance.

The new article 371 substituted for the original article bearing the same number by the constitution (seventh amendment) Act, 1956, made certain provision for the state of Andhra Pradesh, Punjab and Bombay. Clause (1) of the article gives the president the power to set uo regional committees of the legislative assemblies of the state of Andhra Pradesh and Punjab. The order of the president setting up such regional committees could provide for their constitution and function and make necessary medications in the rule of business of the state Governments and in the rules procedure of the state legislative assembly. [12] For the special responsibility by the governor of these states in order to secure the proper functioning of these states fir securing the proper working of these regional committees.

This article was amended by the constitution (seventh Amendment) Act 1956 with effect from 1st November 1956 and by the constitution (thirty-second Amendment) Act 1973 with effect from 1st July 1974. The non obstane clause in Art. 371 cannot have effect of conferring some special immunity and privilege on member of legislature by reason simply of his being a member of a regional committee. [13]

The president may by order, made with respect to the state of Maharashtra or Gujarat, provide for any special responsibility of the governor for-

The establishment for different development boards for-

Vidharbha, Marathawada and the rest of Maharashtra;

Saurashtra, Kutch and the rest of Gujarat.

The provision requiring that a report on the functioning of each these boards will be placed each year before the state legislative assembly, may contained in the order.

The reasonable distribution of funds for developmental expenses over state of Maharashtra and Gujarat, subject to the requirement of the concerned state as whole;

An equitable arrangement which provides adequate facilities for technical education and occupational training and adequate facilities for employment in service under the control of the state government, in respect of all the said areas, subject to the requirements of the state as whole.

NORTH EAST STATES

During the process of administrative reorganisation of India, the authorities focused on the creation of new boundaries based on the different languages being used in different part of the country at that time. But religion, caste, ethnicity or tribal were not the elements for the division but North-eastern part was one major exception to this. In the north-eastern part of the country there is a different ethnicity from the rest of the country. The states which are in this part of the country are Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim and Tripura. Initially most of the states were Union Territories, after this reclassification all of these sates were at the same level; each state has a political power to that of other states.

Article 371 of the Constitution of India gives special power to the north-eastern states, these special powers which has been given to all these states has been introduced through amendments. The government of India on 11th, September, 1968 announced the details of the scheme for constituting within the state of Assam an autonomous state comprising some areas specified in Part A of the constitution. By the constitution (twenty-second Amendment) 1969 new articles 244A and 371 B were inserted. The article 244 A provided for a new state Assam and local legislature. Article 371 B provided for the constitution of a committee of Assam Legislative assembly consisting of the member of the assembly elected from the part A tribal areas and such other members as the president may notify for the purpose. [14] The bills introduced in the assembly may be considered by this committee in the assembly from the point of view of the people living in these areas.

CONCLUSION

The unequal status between various states gives rise to the need for constitutional recognition of inequality, which should be there into the federal polity but in such a way that which protect diversity without sacrificing unity or imposing uniformity. As we know that at the time of independence the state of Jammu and Kashmir was given a choice to be a part of the Union of India, which was accepted by the state of Jammu and Kashmir, because this particular state was facing problem from neighbouring country Pakistan. In the Constitution of India special power has been given to the state of Jammu and Kashmir which is dictated in the section 370.

In India due to inequality of states and of regions within the state was creating dissatisfaction. Asymmetric federalism and special provisions have helped solving these problems.